
aass_l_lvIL£-/- 

Book iL 7b 

If ft 

C ff |; y "*" 



THE 

GENERAL PRINCIPLES 



OP 



CONSTITUTIONAL LAW 



IN THE 



UNITED STATES OF AMEKICA. 



BY 

THOMAS M. COOLEY, LL.D., 

AUTHOR OF "CONSTITUTIONAL LIMITATIONS," ETC. 

Third Edition 
By ANDREW C. McLAUGHLIN, A.M., LL.B. 

PROFESSOR OF AMERICAN HISTORY, UNIVERSITY 
OF MICHIGAN. 



BOSTON: 
LITTLE, BROWN, AND COMPANY. 

1898. 



.C76 

WW 



Copyright, 1880, 
By Thomas M. Cooley. 



Copyright, 1891, 1898, 
Bf t Little, Brown, and Company, 



**¥// 



7 



printm 
& J. Paekhill & Co., Boston, U. S. A. 



PREFACE. 



The manual which follows has been prepared for 
the use of students in law schools and other institu- 
tions of learning. The design has been to present 
succinctly the general principles of constitutional law, 
whether they pertain to the federal system, or to the 
state system, or to both. Formerly, the structure of 
the federal constitutional government was so distinct 
from that of the States, that each might usefully be 
examined and discussed apart from the other; but 
bhe points of contact and dependence have been so 
largely increased by the recent amendments to the 
federal Constitution that a different course is now 
deemed advisable. Some general principles of con- 
stitutional law, which formerly were left exclusively 
to state protection, are now brought within the pur- 
view of the federal power, and any useful presenta- 
tion of them must show the part they take in federal 
as well as state government. An attempt has been 
made to do this in the following pages. 



iv PREFACE. 

The reader will soon discover that mere theories 
have received very little attention, and that the prin- 
ciples stated are those which have been settled, judi- 
cially or otherwise, in the practical working of the 
government. 

THOMAS M. COOLEY. 

University of Michigan, Ann Arbor, 
March, 1880. 



PREFACE TO THE SECOND EDITION. 

In the preparation of this edition, such changes in 
the text and notes of the first edition have been made 
as have been required by the many important deci- 
sions upon constitutional questions rendered within 
the last ten years. While the aim has been to keep 
the book a manual and not to make it a digest, it will 
be found, it is hoped, to treat briefly all important 
points covered by the cases decided up to this time. 

ALEXIS C. ANGELL. 
Detroit, August, 1891. 



PREFACE TO THE THIRD EDITION. 

In the preparation of the third edition of this work, 
I have been guided and aided by the results of ten 
years' experience in using the book with my classes. 
While I have endeavored to leave the text unaltered 
as far as seemed consistent with a careful revision, I 
have made occasional alterations, usually by expanding 
condensed statements, sometimes to correct a principle 
altered or modified by recent decisions. Because of 
the great development of some branches of consti- 
tutional law, for example, the law of interstate com- 
merce, I have found it necessary to rearrange, and 
in large measure rewrite, some pages of the earlier 
editions. I should have preferred to leave the text as 
it was written by its distinguished author ; but inas- 
much as the book is widely used by students in colleges 
and law schools, it seemed unwise simply to use foot- 
notes to call attention to new and important de- 
cisions which have modified the statements of the text. 
Besides new matter inserted in the pages of the earlier 
edition, I have added a chapter dealing with State Con- 
stitutions. This chapter is in large measure a con- 
densation of Chapters III. to VI. of Judge Cooley's 
Constitutional Limitations, and where possible I have 
used the language of that treatise in preference to 
my own. 

andrew c. Mclaughlin. 

University of Michigan, Ann Arbor, 
September, i898. 



CONTENTS. 



Page 

Table op Cases . xi 

Constitution or the United States ....... xxxv 



CHAPTER I. 

The Rise op the American Union . • 3 

CHAPTER II. 

Definitions and General Principles ....... 21 

CHAPTER III. 

Distribution op the Powers of Government .... 44 

CHAPTER IV. 

The Powers op Congress 55 

Sect. 1. Taxes, Loans, and Debts 55 

2 Regulation of Commerce 66 

3. Naturalization 8S 

4. Bankruptcy 89 

5. The Currency 90 

6. Bills of Credit 93 

7. Weights and Measures 94 

8. Counterfeiting 94 



Vlll CONTENTS. 

Page 

Sect. 9. Post Offices and Post Roads . 94 

10. Copyrights and Patents 95 

11. Piracies, Felonies on the High Seas, &c 97 

12. War 98 

13. Ceded Districts 102 

14. Treason 104 

15. Non-enumerated and Implied Powers 105 

16. Restrictions on the Powers of Congress . • > , 111 



CHAPTER V. 
The Powers op the Federal Executive ...... 114 

CHAPTER VI. 

The Judicial Department of the Federal Govern- 
ment 123 r 

CHAPTER VH. 
Checks and Balances in Government 160 

CHAPTER VIII. 
The Government op the Territories 182 

CHAPTER IX. 
The Admission op New States 187 

CHAPTER X. 
Constitutional Rules op State Comity 196 

CHAPTER XI. 

The Guaranty op Republican Government to the 

States .,..«. 213 



Sect 


1. 


a 


2. 


a 


3. 


(C 


4. 


(( 


5. 



CONTENTS. IX 
CHAPTER XII. 

Page 

The Amendments to the Constitution 218 

CHAPTER XIII. 

Civil Rights and their Guaranties 224 £>- 

Religious Liberty 224 

Security of the Dwelling, and of the Person and 

Papers 228 

The Prohibition of Slavery 233 

The Guaranties of Life, Liberty, and Equality . . 240 

Jury Trial in Civil Cases 263 

CHAPTER XIV. 

Political Privileges and their Protections .... 25E I 

Sect. 1. Citizenship 268 

" 2. Suffrage and Elections 1 275 ' 

" 3. The Right of Assembly and Petition 294 

" 4. The Right to keep and bear Arms . ... k 297 

" 5. .Freedom of Speech and of the Press 299 

CHAPTER XV. 

Protections to Persons accused of Crime 310 

Sect. 1. Legislative Adjudications 310 

2. Treason: its Definition and Punishment .... 314 

3. The Writ of Habeas Corpus 315 

4. Accusations of Crime 317 

5. Bail 318 

6. Incidents of the Trial and Punishment .... 319 



CHAPTER XVI. 

Protections to Contracts and Pkoperty 328 

Sect. 1. Laws impairing the Obligation of Contracts . . 328 

" 2. Protection to Property 345 

" 3. The Eminent Domain 363 



1 



X CONTENTS. 

CHAPTER XYII. 

Page 
Municipal Corporations ........... 378 



CHAPTER XVHI. 

The Formation and Construction op State Constitu- 
tions 381 



INDEX 393 



TABLE OF CASES. 



A. 

Page 

Ableman v. Booth . 22, 31, 35, 

110, 132, 147, 275 

Adams Express Co. v. Ohio . 81, 

250 

Affold Estate, Re ... . 90 

Ahl v. Gleim 356 

Alabama v. Georgia . . . 133 
Alabama, &c. R. R. Co. v. 

Kenny ., 338 

Albany St., Matter of . . 377 
Albertson v. Landon . . . 358 
Alexander v. Bennett ... 46 
Alexandria & F. Ry. Co. v. Al- 
exandria, &c. R. R. Co. . 370 
Allen v. Archer .... 358 

v. Jay 59 

v. Pioneer Press Co. . 309 
Allgeyer v. Louisiana . . 246 
Almy v. California ... 58, 75 

Alter's Appeal 355 

American Ins. Co. v. Canter 37, 
53, 99, 117, 156, 183, 186 
American Publishing Co. v. 

Fisher 18 

American Tel. Co. v. Pearce 369 

Ames v. Kansas 128 

Ames Iron Works v. Warren 197 
Anderson v. Dunn . . 107, 327 

v. Pond 198 

v. State 299 

Antelope, The 200 

Apple, Estate of .... 197 
Armstrong v. Carson . . . 203 

v. Toler 198 

Armstrong Foundry Case . 116 

Arnott v. Webb 204 

Arrowsmitli v. Gleason . . 154 

v. Harmon ing .... 241 

Asher v. Texas 82 



Page 
Astor v. New York ... 358 
Atkinson v. Dunlap . . . 359 
Atlanta v. Green .... 371 
Atlantic, &c. Tel. Co. v. Chi- 
cago, &c. R. R. Co. . . . 369 
Attorney General v. Barstow 289 

v. Detroit 280 

v. Eau Claire .... 59 

v. Ely 282 

v. Supervisors .... 284 
Auditor of State v. Railroad 

Co 54 

Auffmordt v. Hedden. . . 265 

Avon, The 131 

Ayers, In re . . . . 136, 148 
Aztec Mining Co. v. Ripley 127 



B. 

Bach elder v. Moore 
Bachrack v. Norton 
Backus v. Lebanon 
Bailey v. Dozier 

v: Railroad Co 
Baiz, In re . . 
Baker v. Braman 

v. Fort St. U. D 

v. Grice . 

v. Portland 

v. State . 
Baker's Executors 



Co 



Kil- 



gore . . . 
Baldwin v. Hale ... 90, 

v. Trowbridge 
Baltimore v. State 168, 380, 

v. Baltimore Trust Co . 
Bank of Augusta v. Earle 197 
Bank of Columbia v. Okely 



327 
114 
265 
136 
340 
128 
171 
377 
147 
256 
174 

353 
344 
278 
387 
340 
,201 
243 



Xll 



TABLE OF CASES. 







Page 






Page 


Bank of Kentucky v. 


Wister 


135 


Benson v. United States 


. , 


104 


Bank of United States 


v. Don 




Berry v. Ramsdell 


, . 


359 


ally . . . 




198 


Bevard v. Hoffman 


. . 


174 


v. Halstead . 155, 159 


, 389 


Bigelow v. Forrest . . 


. . 


105 


Banks, The, v. The Mayor . 


65 


Billings v. Lafferty 


. 


174 


v. Supervisors . 


62,65 


, 289 


Binghamton Bridge Case . 


333 


Bank Tax Case . 




62 
99 


Bird v. State .... 
Bissell v. Penrose . . 




323 


Barber v. Irwin . . 




159 


Barbier v. Connolly 22, 249 


250, 


Blake v. United States 


, 


119 




251 


,338 


Blanchard v. Sprague 


o 


96 


Barings v. Dabney 


. 


343 


Blanchard's Factory . 


. 


96 


Barker v. People 


, . . 


325 


Blitz v. United States 


. 


278 


Barnes v. Adams 




283 


Bloodgood v. Railroad Co. . 


367 


v. District of Columbia 


334, 


Bloom's Case . . . 




324 






379 


Bloomer v. Stolley . . 


' 96 


,112 


v. Suddard . 




202 
326 


Board of Education v. Mayoi 
Bogert, Re 


• 165 


Barnett v. People . 


! ! 


156 


Barron v. Baltimore 




18 


Bohannon v. Commonwealth 


231 


v. Burnside 


' 144, 21 


Boiling v. Lersner . . 


. 


127 


Barry v. Arnaud 


, . 


140 


Bollman, Ex parte 




315 


v. Lauck . . . 




284 
235 


Boom Co. v. Patterson 
Booth v. Woodbury . 


! 60 


141 


v. Mercein . . 




,356 


Bartlett v. Christhilf 


t . 


303 


Bors v. Preston . . . 


128 


, 137 


v. Crittenden . 


. # 


96 


Boston, &c. R. R. Co., In 


re 


370 


v. Lang . 




360 
111 


Boston, &c. R. R. Co. v. 1 

Bostwick v. Perkins . 


state 


340 


Barto v. Himrod . . 


* 


349 


Bates v. Chapman . 


• • 


45 

163 
176 


Boswell v. Otis . . . 




205 


v. Kimball . . 


v. State .... 




325 


v. Taylor 




Bourland v. Hildreth . 




283 


Batman v. Megowan . 


." .' 


289 


Bourne v. The King . 




324 


Bauman v. Ross . . 


. . 


375 


Bowerbank v. Morris . 


. 


119 


Bauserman v. Blunt 




150 


Bowman v. Chicago, &c. '. 


Ely. 




Baxter v. Brooks . 


. . 


289 


Co 




77 


Beach v. Walker . . 


. . 


357 


Boyce v. Sinclair . . 


, 


357 


Beardstown v. Virgini 
Beatty v. Benton . 


i 387 


389 
128 


v. Tabb 




151 


Boyd v. Thayer . . . 




271 


Bebee v. State 




167 


Boyer, Ex parte . . . 
Bradford v. Brooks . . 




131 


Beekman v. Saratog 


a, &c. 






46 


R. R. Co. . . . 




367 


v. Shine .... 




359 


Beer Co. v. Massachuse 


>tts '. 


257, 


Bradley, Ex parte . . 


. 


327 




332, 


341 


Bradley v. Fisher . . 


. 


327 


Beers v. Arkansas . 


. 129 


333 
131 


v. Heath 




297 


Belfast, The . . . 


Bradshaw v. Lankford . 


m 


380 


Belgenland, The . 




131 


Bradwell v. State . . . 


. 


257 


Belknap v. Schild . 


! 96 


133 


Brass v. Stoeser . . . 




261 


Bell v. Morrison . . 


313 


359 


Breeding v. Davis . . . 


. 


353 


v. Lamborn . , 




368 


Breitung v. Lindauer . . 




359 


Bellaire v. Baltimore . 


. # 


142 


Brennan v. Titusville . 


74,* 


Belt, In re .... 


. 


321 


Brent v. Chapman . . . 


46, 


359 


Benner v. Porter . . 


. 


186 


Brick Presbyterian Chui 


•ch 




Bennett v. Bull . . . 


. . 


167 


v. New York .... 




334 


v. Fulmer . . . 


. . 


174 


Bridges, Ex parte . . 


. 


145 



TABLE OF CASES. 



Xlll 



Bridges v. Shellcross ... 45 
Briggs v. Lewiston, &c. Co. 374 
Brigham v. Cabott .... 136 

v. Miller 389 

Bright Star, The .... 69 
Brimmer v. Rebman ... 77 
Brinton v. Seevers .... 355 
Brisbin v. Cleary .... 281 
Briscoe v. Bank of Ken- 
tucky 29, 93, 165 

Brittle v. People .... 383 
Broadhead v. Milwaukee . 60 
Broadway Church v. McAtee 227 
Bronson v. Kinzie . . . 330, 360 



Com 



Brooklyn Park 

Armstrong . 
Broughton v. Pensacola 
Brown, Ex parte 
Brown v. Cape Girardeau 

v. Duchesne 

v. Grover . . 

v. Houston . . 

v. Maryland 

v. New York . 

v. State . . . 

v. Trousdale . 

v. United States 

v. Walker . . 
Brown son v. Rodes 
Bryant v. Hunters . 

v. United States 
Bucher v. Cheshire 

Co 

Buck v. Colbath . . 
Budd v. New York 
Bull v. Conroe . . 

v. Read . . . 
Burch v. Newberry 
Burgess v. Seligman 
Burghardt v. Turner 
Burke v. Gaines . . 

v. Mascarich . 
Burkett v. McCarty 
Burlington v. Leebrick 
Burns, Ex parte 
Burnside v. Lincoln Co 
Burrus, In re . . 
Burt v. Brigham 
Burtt v. Pyle . . 
Bush v. Kentucky 
Bushel's Case 
Bushnell's Case 



366 

343 

99 

173 



. 279 

72-83, 86 

74,77 

, 354 



305 
142 

98 
323 

93 
203 
148 



R. 
149 



150 

. 154 

260, 261 

. 332 

. 167 

. 46 

. 151 

. 353 

. 127 

. 306 

. 279 

. 54 

. 45 

166 

146 

365 

327 

143 

321 

152 



Ct. 



Page 
Butcher's Union Co. v. Cres- 
cent City Co. ... 335, 341 
Butler v. Boston, &c. S. S. 

Co 131 

v. Gage 165 

v. Goreley .... 36, 90 

v. Horwitz 93 

v. Pennsylvania . . . 332 

v. People 194 

v. Toledo 358 

Byers v. McAuley .... 155 



35, 46 ; 



Cabrera, Ex parte 
Cade v. Davis 
Calderv. Bull 29,31, 

v. Kirby . . . 
Caldwell v. Texas . 
Caledonia Ry. Co. v. Walk 

er's Trustees . 
California v. Pacific R. R. Co 

California Pac. R. R. Co., Re 
Callan v. Wilson .... 
Callanan v. Hurley . . . 
Callison v. Hedrick . . . 
Campau v. Detroit .... 
Campbell v. Holt .... 

v. State 

v. Wade 

Cancemi v. People . 265, 

Canfield v. U. S 

Cannon v. New Orleans . . 
Carbee v. Mason .... 
Cardwell v. Amer. Bridge Co 



Carew v. Rutherford . . 
Carleton v. Goodwin's Ex'r 
Carlisle v. United States 
Carlow v. Aultman 
Carpenter v. Rogers 
Carr v. Gale . . . 
Carson River, &c. Co. 

rctt 

Carter v. Harrison . 
Cary Library v. Bliss 
Casborus v. People 
Case v. Kelly . . 
Cash, Appellant. . 
Cates v. Allen . . 



Bar 



154 

197 
313 
332 

322 

371 
. 62, 
153 
90 
265 
361 
377 
171 



351 
321 
104 

87 
344 
. 85, 

86 
263 

46 
116 
202 
183 
266 

185 
174 
329 
326 
149 
353 
161 



XIV 



TABLE OF CASES. 



Page 

Celestine, The 153 

Central Bridge Corp. v. 

Lowell • . 370 

Central Pac. Ry. v. Cali- 
fornia 63 

Central R. R. Co. v. Georgia 

Constr. Co 208 

Central Un. Tel. Co. v. State 261 
Chadwick v. Melvin ... 284 

Chaffe v. Aaron 360 

Chambers v. Church . 198, 208 
Chapman, In re . . . . 50, 327 
Chapman v. Toy Long . . 256 
Chappell v. Waterworth . 141 
Charles River Bridge v. 

Warren Bridge . 248, 337, 375 
Charlotte, &c. R. R. Co. v. 

Gibbes 250 

Chase v. Chase 255 

Cheaney v. Hooser ... 60 
Cheever v. Wilson . . 204, 349 
Cherokee Nation v. Georgia 134 
v. Sou. Kan. Ry. Co. 364, 377 
Cherokee Tobacco, The . . 32 
Chestnut v. Shane's Lessee 354 
Chicago v. People .... 267 

v. Robbins 151 

Chicago Life Ins. Co. v. 

Needles 340 

Chicago, &c. R. R. Co. v. 

Haggerty .... 339 
v. Iowa .... 259, 341 
v. People . . . 283, 340 

v. Williams 258 

Chicago, &c. Ry. Co. v. 

Chicago 128 

v. Guffey 336 

v. Jones 112 

v. Minnesota .... 342 

v. Solon 71 

v. Wellman 166 

Chicago, B. & Q. R. R. v. 

Chicago 267 

Childs v. Shower .... 362 
Chinese Exclusion Case . . 32 
Chirac v. Chirac .... 88 
Chisholm v. Georgia 17, 27, 110, 
135 
Christ Church v. Philadel- 
phia 227, 332, 336 

Christmas v. Russell ... 204 
Chy Lung v. Freeman . . 78 



Pags 

City Bank v. Skelton ... 154 
Civil Rights Cases 31, 240, 241, 
259 
Clark, Matter of .... 209 
Clark v. Barnard .... 136 
v. McKenzie .... 289 

v. Smith 151 

v. White 367 

Clarke v. State 313 

Clay v. Field 148 

Clayton v. Calhoun . . . 165 
v. Utah .... 127, 185 
Cleveland, In re ... 46, 54 
Clinton v. Englebrecht 156, 185 
Clough v. Curtis . . 156, 166 

Coats v. Hill 359 

Coe v. Errol 75 

Coffin v. Coffin 51 

v. Tracy 348 

Coffman v. Keightley . . . 356 

Cofrode v. Circuit Judge 200, 208 

Cohens v. Virginia 27, 102, 110, 

136, 389 

v. La Grange .... 59 

v. Tucker 281 

Coleman v. Tennessee . . 157 
Coll v. Board of Canvassers 289 
Collector v. Day .... 62 
Collins v. New Hamp. . . 77 
Columbus, &c. Hy. Co. v. 

Witherow . . . 370, 372 
Comanche Co. v. Lewis . . 378 
Commerce, The .... 131 
Commissioners v. Bowie . 376 
Common Council v. Rush . 281 
Commonwealth v. Alger . 250 

v. Bird 352 

v. Blanding .... 300 
v. Clarv .... 103, 272 

v. Deacon 210 

v. Downing .... 326 
v. Emminger .... 289 

v. Freelove 322 

v. Hall 313 

v. Hamilton Mfg. Co. . 256 

v. Hart 325 

v. Hawes 211 

v. Hippie 46 

v. Hitchings .... 171 
v. Intoxicating Liquors 342 

v. Jones 286 

v. Kneeland .... 227 



TABLE OF CASES. 



XV 



Page 
Commonwealth v. Lane . . 199 

v. Leech 290 

v. Marshall 358 

v. McCloskey .... 167 
v. Pennsylvania Canal 

Co 370 

v. Porter 324 

v. Potts 171 

v. Wolf 227 

Comstock, Re 201 

Corns tock v. Gray .... 353 
Confiscation Cases . . . . 344 
Conklin v. New York, &c. Ry. 

Co 370 

Conner v. Elliott . . 207, 208 
Connors v. United States . 278 
Consolidated Cannel Co. v. 

Cent. Pac. R. R. Co. . . 367 

Converse, In re 241 

Conway v. Cable .... 358 

v. Taylor 84 

Cook v. Hart 211 

v. Oliver 190 

v. United States . 313, 320 
Cooley v. Wardens . . 22, 70 
Cooper, Re . . . 158, 327, 366 
Cooper v. Reynolds . . . 205 

v. Telfair 311 

Cope v. Cope 185 

v. Vallette Dry Dock 

Co 132 

Corfield v. Coryell . . 132, 207 

Cory v. Carter 255 

Cottrel v. Union Pac. Ry. Co. 358 
Council Bluffs v. Railroad 

Co 152 

Counselman v. Hitchcock . 323 
County Court v. Robinson . 255 
Coupland, Ex parte ... 99 
Co veil v. Hey man .... 154 
Covington Bridge Co. v. 

Kentucky 79 

Covington, &c., Turnpike Co. 

v. Sandford 261, 336, 342 

Cowley v. Pulsifer .... 305 

Coy, In re 278 

Craig v. Missouri .... 93 
Crandall v. Nevada . 273, 275 

v. State 208 

Crane v. Meginnis .... 254 
Oranson v. Smith .... 96 
Crenshaw v. United States . 332 



Creston v. Nye 320 

Cross v. Harrison .... 184 

v. Hopkins Ill 

v. North Carolina . . 36, 94 
Crowell v. Hopkinton . . 59, 356 
Crowley v. Christensen . . 249 
Cruikshanks v. Charleston . 362 
Crutcher v. Kentucky ... 74 
Cubreth, Ex parte .... 210 
Cuddy, Petitioner .... 327 
Cummings v. Missouri . 33, 312 
Cunningham v. Macon, &c. R. 

R. Co 135 

Cusick's Appeal 280 



D. 

Dada v. Piper 308 

Daggett v. Hudson ... 280 
Daily Post Co. v. McArthur 309 

Dale v. Irwin 284 

Daly v. Sheriff 153 

Dana, Matter of .... 265 
Daniel Ball, The ... 69, 84 
Dantzer v. Indianapolis . . 371 
Danville v. Pace . . 170, 360 
D'Arcy v. Allain .... 262 
v. Ketchum . . 204, 205 
Darrington v. State Bank . 94 

Darst v. People 248 

Dartmouth College v. Wood- 
ward 243, 333, 379 

Davidson v. New Orleans 242, 246, 

362 

Davies v. McKeeby . . . 279 

Davis y. Beason 225 

v. Elmira Savings Bank 33 

v. Packard 129 

v. South Carolina . . 143 
v. State Bank .... 357 

v. Texas 241 

Davis's Case 210 

Davison v. Duncan ... 51 
Dawkins v. Pawlet . . . 303 

Day v. Kent 283 

Deaton, In re 327 

Debs, In re 32, 107 

De Camp v. Hibernia R. R. 

Co 368 

Deckert, Re 90 

De Cuir v. Benson .... 258 



XVI 



TABLE OF CASES. 



Deffeback v. Hawke 
De Giacomo, In re 
Dekrafft v. Barney 
Delano v. Bartlett . 
v. Morgan . . 
Delaware, &c. R. R. Co 

Central S. Y. Co. . 
Delmar v. Insurance Co. 
Dennick v. Railroad Co. 
Denny v. Mattoon . . 
v. Pironi ... 
Dent v. West Virginia 



Page 

63 

314 

147 

, 279 
, 285 

\ 261 
. 344 
. 201 

, . 357 

, . 137 

243, 257, 

346 



Co 



R 



R. 



Denton, In re 
Denver v. Bayer 
Denver, &c. Ry 

Bourne 

De Saussure v. Gaillard 
Desbois's Case . . . 
Detroit v. Osborne . . 
Deutzel v. Waldie . . 
Devisser v. Blackstone 
Dewhurst v. Allegheny 
De Wolf v. Johnson . 
Dickey v. Hurlburt 

v. Turnpike Co. . 
Diggs v. Wolcott . . 
Dimes v. Proprietors . 
Dixon v. Parmelee 
Doane v. Lake St. El 

Co 

Dobbins v. Commissioners 
Dobyns v. Weadon . . 
Dodge v. Brooks . . 

v. Woolsey . . . 
Doe v. Braden . . . 
Doolan v. Carr . . . 
Dorr, Ex parte . . . 
Dorris v. Grace . . . 
Dorsey, In re . . . . 
Dorsey v. Dorsey . . 
Douglass v. Kentucky 

v. Pike Co. . . . 
Dow v. Beidelman . . 
Dowling v. Livingstone 

v. State .... 
Doyle v. Insurance Co. 
Drainage of Lands, Matter of 
Drake v. State . 
Drehman v. Stifel 
Ducat v. Chicago 
Duke v. Asbee . 



. 310 

. 371 

v. 

. 372 

127, 135 

. 271 

. 150 

. 355 

. 155 

. 392 

. 198 

. 284 

. 95 

. 154 

. 375 

. 324 



. 374 
. 62 
. 283 
. 284 
33, 137 
32, 118 
. 114 
. 147 



. 286 

. 46 

332, 341 

. 329 

. 324 

. 307 

. 313 

. 173 

368 

309 

317 

201 

288 



Duncan, In re . . 
Duncan v. Missouri 
Dunham v. Powers 
Dunn v. Burleigh . 
Durach's Appeal . 
Durand v. Hollis . 
D wight v. Rice . • 



E. 



Page 
147 
317 
303 
347 
11 
115 
174 



Eagle, The 130 

Eagle Ins. Co. v. Ohio . . 340 

Eames, Ex parte .... 90 
Eastern R. R. Co. v. Boston, 

&c. R. R. Co 338 

East Hartford v. Bridge Co. 334 

East Kingston v. Towle . . 361 
East Saginaw Salt Co. v. 

East Saginaw. . . .332,336 

East St. Louis v. O'Flynn . 372 
Edmundson v. Pittsburgh, 

&c. R. R. Co 371 

Edwards v. Elliott .... 18 

v. Tanneret 53 

Edwards's Lessee v. Darby 159 

Eels v. Am. Tel., &c. Co. . 369 

Eggleston v. Strader ... 283 

Eilenbecker v. Dist. Ct. . . 245 

Eingartner v. 111. Steel Co. . 208 

Elk v. Wilkins 270 

Elliott v. Fair Haven, &c. R. 

R. Co 374 

Elmwood v. Marcy. . . . 150 

Embury v. Connor .... 166 

Emert v. Missouri .... 82 

Enfield v. Jordan .... 151 

Ennis v. Smith 197 

En tick v. Carrington . . . 231 
Escanaba Co. v. Chicago 83, 85, 



Esmond, In re . . . 
Essex Board v. Skinkle 
Evans v. Eaton . . . 
v. United States . 
Ewing v. Fuller . . . 
Express Co. v. Kountze 

F. 

Fairfield v. Gallatin . 
Fairman v. Ives . • • 



324 
334 
96 
322 
290 
186 



150 
297 



TABLE OF CASES. 



XVH 



Page 

Fallbrook Ir. Co. v. Bradley 245, 

366 

Fargo v. Michigan .... 75 

Farrington v. Tennessee . 333 

| v. Turner 284 

Fausler v. Parsons .... 175 
Feibleman v. State ... 388 
Feineman v. Sachs .... 198 
Feldman v. Charleston . . 59 

Fell v. State 332 

Fellows v. Blacksmith . . 118 
Fensterman v. Tribune Pub. 

Co 309 

Fenton v. Scott 282 

Ferris v. Higley 185 

Ferry Co. v. East St. Louis . 84 

Fertilizing Co. v. Hyde Park 334, 

337, 341 

Fickeln v. Shelby Tax. Dist. 82 

Field, Ex parte 317 

Field v. Clark . . 50, 112, 389 

v. Gibbs 203 

v. People .... 45, 388 
Fisher v. McGirr . 230, 248, 347 

Fisk v. Henarie 142 

v. Jefferson Police Jury 329, 
332, 342 
Fitchburg, &c. II. R. Co. v. 

Grand Junction R. R. Co. 340 
Flagg v. Baldwin .... 198 
Fletcher v. Peck . 172, 329, 330 
Florida v. Georgia .... 133 
Fong Yue Ting v. United 

States 32, 109 

Ford v. Surget 191 

v. Delta, &c. Land Co. . 249 
Forsyth v. Hammond . . . 380 
v. United States ... 186 
Fort Dodge v. District Town- 
ship 284 

Fort Leavenworth R. R. Co. 

v. Lowe 104 

Foster v. County Commiss'rs 152 
v. Davenport .... 73 
v. Essex Bank .... 354 

y. Master, &c 73 

v. Neilson . . 32, 117, 157 

v. Scarff 281 

Fowler v. Lindsey .... 134 
Fox v. Hempfield R. R. Co. 155 

v. Ohio 36, 94 

Franklin School v. Bailey . 329 





Page 


Freeland v. Hastings . 


. 59 


v. Williams . . . 


317, 360 


Freeman v. Howe . . 


. 154 


Freeport v. Marks . . 


. 174 


Freer v. Ford .... 


. . 166 


French v. Nolan . . . 


. 285 


Fretz v. Bull . . . . 


. 130 


Fries's Case .... 


. 315 


Frolickstein v. Mobile 


. 227 


Fuller v. Steiglitz . . 


. 197 


Furman v. Nichols . . 


, . 330 



Gage v. Caraher .... 361 

Gaines v. Buford . 263, 350, 361 

v. Fuentes .... 125, 144 

v, Relf 206 

v. Thompson .... 121 
Gainesville, &c. R. R. Co. v. 

Hall 372 

Galena v. Amy 343 

Galesburg v. Hawkinson . 54 

Galpin v. Page 204 

Gantley's Lessee v. Ewing . 360 
Garcia v. Lee . . . .- . . 117 
Garland, Ex parte . 116, 286, 312 
Garnett, Ex parte .... 131 

Garr v. Selden 303 

Garvey's Case 325 

Garvey v. People .... 313 
Gassett v. Gilbert .... 307 
Gaus & Sons Mfg. Co. v. 

Railroad Co 373 

Gazette Co. v. Timberlake . 305 
Geer v. Connecticut ... 75 
Gelpcke v. Dubuque . . . 151 

Gelston v. Hoyt 157 

General Cass, The .... 130 

Genesee Chief, The ... 130 
Geofroy v. Riggs .... 103 

Georgia v. Atkins .... 62 

v. Stanton .... 121, 157 

Georgia Banking Co. v. 
Smith ........ 341 

Gerard v. People .... 325 

Gibbons v. Ogden 28, 29, 39, 66, 
67, 68, 73, 387 

Gibbs v. Gale 361 

Gibson v. Chouteau , . . 360 
v. Lyon 150 



XVU1 



TABLE OF CASES. 



Page 

Gibson v. Mississippi 143, 249, 313 

Gilman v. Philadelphia . 29, 85 

v. Sheboygan .... 336 

Ginn v. Rogers 349 

Giozza v. Tier nan .... 338 
Gloucester Ferry Co. v. 

Pennsylvania .... 76, 84 
Glover v. Taylor .... 288 
Godfrey v. Terry .... 124 
Goetcheus v. Mathewson . 174 
Golden v. Prince ... 31, 35 
Gold Washing, &c. Co. v. 

Keyes 144,145 

Gon-Shay-Ee, Petitioner . 156 
Goodell, Matter of . ... 257 
Goodell v. Jackson ... 270 
Gordon v. Caldcleugh . . . 127 

v. Farrar 174 

Gorman v. Havird .... 148 
Gormley v. Clark .... 150 
Gougar v. Timberlake . . 277 
Goshen v. Stonington . . . 356 
Goshorn v. Purcell .... 355 
Gottschalk v. Chicago, &c. 

Ry. Co 372 

Governor v. Madrazo . . . 134 
Grand Lodge v. New Orleans 332 
Grand Rapids, &c. Booming 

Co. v. Jarvis 374 

Grape Shot, The . . 53, 98, 99 
Grattan v. Appleton . . . 197 
Graves v. Corbin .... 142 
Gray v. Pentland .... 297 
Great Falls Mfg. Co. v. Gar- 
land 376 

Green, In re 278 

Green v. Bridgeton . . . 248 
v. Briggs .... 230, 265 
I;. Collins . . . . . 348 
v. Neal's Lessee . . . 150 
v. Shumway .... 279 

v. State 371 

v. Van Buskirk . 197, 204 

v. Weller 385 

Greenough v. Greenough 45, 46, 
355 
Greenville, &c. R. R. Co. v. 

Partlow 376 

Greenwood v. Freight Co. . 341 
Grenada Co. Superv. v. Brog- 

den 172 

Grier v. Shackleford ... 289 



Page 
Griffin v. Coleman .... 233 
v. Cunningham . . . 350 
v. Wilcox . . . 317, 358 
Grim v. School District . . 56 
Grimley, In re ... . 99, 156 
Grimmett v. State .... 321 

Griner, In re 100 

Groesbeck v. Seeley . . 47, 361 
Grogan v. San Francisco . 334 
Gross v. U. S. Mortgage Co. 354 
Grover & B. M. Co. v. Rad- 

cliffe 204 

Gulf C, &c. Ry. Co. v. Fuller 371 

v. Ellis 249 

Gulick v. New 285 

Gumbel v. Pitkin .... 154 
Gunn v. Barry 33, 342, 343, 345 

Gut v. State 313 

Guy v. Baltimore .... 208 
Gwin v. Breedlove . . . 135 



H. 



Haas v. Railroad Co. 






339 


Hagar v. Reclam. Dist. 


243, 


246, 
362 


Hagerstown v. Dechert 




171 


Hagood v. Southern . 




136 


Hale v. Akers . . . 




128 


v. Everett . . . 




387 


Hall v. Be Cuir 72, 79 


259 


,274 


v. Keese .... 




98 


v. Wisconsin . . 




332 


Hallinger v. Davis . . 


245 


321 


Halsey v. St. Ry. Co. 




374 


Ham v. Smith . . . 




288 


Hamilton v. Vicksburg, 


&c. 




R. R. Co 


. 85,* 


Hamilton Gas Light Co 


. v. 




Hamilton City . . 


337 


341 


Hammett v. Philadelphia 




60 


Hammond v. Johnston 




128 


Hampton v. McConnell 


203 


204 


Hanauer v. Doane . . 




191 


v. Woodruff 






191 


Hand v. Ballou . . 






361 


Handley v. Stutz . 






148 


Hanley v. Donoghue 




204, 


206 


Hanover v. Turner 






255 


Hans v. Louisiana . 






135 


Harbaugh v. Cicotte 




. 


284 



TABLE OF CASES. 



XIX 



Harmon v. Chicago 
Harris v. Dennie . 

v. Hardeman . 

v. People . . 
Hart v. Bostwick . 

v. Evans . . 
Hartman v. Greenhow 
Harvey v. Richards 

v. Tama Co. 

v. Thomas . . 
Harwood v. Wentworth 
Hasbrouck v. Milwaukee 
Haskell v. New Bedford 
Hatch v. Burroughs . 
Hatcheson v. Tilder . 
Hathon v. Lyon . . . 
Hauenstein v. Lynham 
Hawker v. New York . 



Page 
84 
88 
204 
321 
359 
282 
331 
197 
288 
368 
50 
379 
166 
191 
285 
353 



32 

257, 314, 

346, 351 

Hawkins v. The Governor . 176 

Hayburn's Case .... 54 

Hayes v. Missouri .... 249 

v. Press Co 305 

Haynes v. United States . 116 
Hazard v. Railroad Co. . . 145 
Head v. Amoskeag Co. . . 368 
v. University .... 332 
Head Money Cases 32, 75, 117 



283, 288 
. 326 
. 153 



Heath, Ex parte 
Hector v. State .... 
Heidretter v. Oil-cloth Co 
Heine v. Levee Commission- 
ers 54, 155 

Henderson v. Coal Co. . . 148 

v. Mayor ... 66, 75, 78 

v. Minneapolis . . . 370 

Henderson's Distilled Spirits 363 

Hennen, Ex parte . . 118, 119 

Hennington v. Georgia . . 71 

Hepburn v. Ellzey .... 137 

v. Griswold .... 91 

Herdic v. Roessler .... 96 

Herrick v. Minneapolis, &c. 

Ry 201 

Hess v. Johnson 317 

Hey Sing Jeck v. Anderson 230 

Hickman v. Jones .... 266 
Higgins v. Central New Eng., 

&c. R. R 201 

Hilbish v. Catherman . . 56 

Hildreth v. Lowell .... 366 

Hill v. Sunderland ... 46 



Page 
Hill v. Townsend .... 197 
Hilliard v. Miller .... 355 

Hine, The 129 

Hiss v. Bartlett 50 

Ho Ah Kow v. Nunan . . 324 

Hoar v. Wood 304 

Hoare v. Silverlock . . . 305 
Hobbs & Johnson, Ex rel. 235, 
254 
Hodges v. Bait. Pass. Ry. Co. 374 
Hoffman v. Hoffman . 255, 349 



Hoke v. Henderson 
Holbrook v. Finney 
Holden v. Hardy . 
Holiday v. Pitt . . 
Holland v. Challen 
Hollida v. Hunt . . 
Holmes v. Jennison 



242 
353 
256 

50 
151 

96 
101, 102 



Home Ins. Co. v. City Council 336 

v. New York .... 249 

Hooe v. Jamieson .... 137 

Hooker v. Hooker .... 46 

Hoover v. Wood .... 165 

Hope v. Johnson .... 360 

Hopkins v. McLure ... 128 

Hoppin v. Jenckes ... 50 

Hopt v. Utah 313 

Horbach v. Miller .... 359 

Horn v. Lockhart .... 191 

Hornbuckle v. Toombs . . 156 

Hornby v. Close .... 263 

Horner v. United States . . 147 

Hornet, The 157 

Hot Springs R. R. Co. v. Wil- 
liamson 371, 372 

Houseman v. Kent Circ. 

Judge 358 

Houston v. Moore . . .88, 100 
Houston, &c. Ry. Co. v. 

Texas ....... 331 

Howard v. Cooper . . . 284 

v. Thompson .... 297 

Howell v. Bristol .... 379 

v. Jackson 258 

v. State 57 

Hubbard y. Brainerd . . . 358 

ITuber v. Beilly . . . 279, 286 

Hughes's Case 209 

Huidekoper v. Douglas . . 330 

Huling v. Railway Company 245 

Hull r. State ...... 343 

Hung Hang, Ex parte 128, 147 



XX 



TABLE OF CASES. 



Page 
Hunt v. Sheldon .... 286 
Huntington v. Attril . 200, 201 
Hurtado v. California . . . 245 
Huse v. Glover .... 84, 86 
Hutchinson v. Parkersburg 371 

Hyde v. Brush 280 

Hylton v. United States . 63 



Illinois Cen. R. R. Co. v. 

Illinois 112, 335 

Imlay v. Union, &c. R. R. 

Co 373 

Indianapolis B. & W. Ry. 

Co. v. Eberle 373 

Inman Steamship Co. v. 

Tinker 87 

Insurance Co. v. Brown . . 342 

v. Francis 137 

v. Morse . . .144, 202, 274 

v. Pechner 144 

v. Rodel 266 

Iowa, &c. Co. v. Soper . . 358 
Iowa Cen. Ry. Co. v. Iowa . 245 
Iron Mt. R. R. Co. v. Bing- 
ham 373 

Irvine v. Sim's Lessee . . 150 



J. 



Jackson, Ex parte ... 95, 309 

Jackson v. Ashton .... 136 

v. Commonwealth . . 323 

v. Goodell 69 

v. The Magnolia ... 130 
Jackson Iron Co. v. Auditor 

General 87 

Jacobs, In re 251 

Jacquette v. Hugunon . . 204 
James Gray, The, v. The John 

Fraser 70 

Janes v. Reynolds . . . 242 
Jecker v. Montgomery . 53, 99 
Jefferson Branch Bank v. 

Skelly 33, 150 

Jeffries v. Ankeny . . . 174 
Jenkins, Ex parte .... 146 
Jentsch, Ex parte .... 256 



Page 
Johnson v. Chicago, &c. El. 

Co 131 

v. Jones .... 317, 358 
v. Mcintosh .... 69 
v. Railroad Co. . . . 173 

v. Riley 210 

v. Sayre 156 

v. Waters 152 

Jones v. Brim 249 

v. Perry 45 

v. Surprise 198 

v. United States . . 97, 158 
Jordan v. City of Ben wood . 371 

Judkins v. Hill 284 

Julia Bldg. Ass. v. Bell Tel. 

Co 369 

Justices v. Murray . . 18, 267 



Kaine, Matter of .... 147 
Kanawha Coal Co. v. Ka- 
nawha, &c. Coal Co. . . 192 
Kansas City, &c. R. R. Co. v. 

Daughtry 145 

Kansas Indians, The . . . 158 
Kearney v. Taylor .... 357 
Keeler, Ex parte . . 251, 257 
Kehrer v. Richmond . . . 371 
Keith v. Clark . . 190, 191, 330 
Kellogg v. State Treasurer . 172 
Kelly v. Pittsburgh ... 245 
v. United States ... 103 

Kemmler, In re 324 

Kendall v. United States 115, 122, 
176 
Kennard v. Louisiana . . 290 
Kennedy v. Indianapolis . 377 
Kenneth's Petition ... 370 
Kentucky Railroad Tax 

Cases 246, 250 

Kentucky v. Dennison 128, 209, 

210 

Keppel v. Railroad Co. . . 190 

Ker v. Illinois 211 

Kerrigan, Ex parte . . . 327 
Kershaw v. Bailey . . . 297 
Keyes v. United States . . 118 
Kidd v. Pearson . . 22, 75, 257 
Kilbourn v. Thompson . 50, 327 
Kiramish v. Ball . . 76, 80, 207 



TABLE OF CASES. 



xxi 



King ». "Root . . . 
King, The, v. Abingdon 
v. Creevey . . . 
Kingsbury's Case . . 
Kinney v. Beverley • 
Kinyon v. Palmer . . 
Kirtland v. Hotchkiss 
Kisler v. Cameron . . 
Kneedler v. Lane . . 
Knote v. United States 
Knox Co. v. Ninth Nat. 
Koehler v. Hill . . . 
Kohl v. United States 

Kohlheimer v. State . 
Kollock, In re . . . 
Koshkonong v. Burton 
Kreitz v. Behrensmeyer 
Kring v. Missouri . . 
Krippendorf v. Hyde . 
Kuback, Ex parte . . 



L. 



Page 

. . 306 

51 

. . 51 

. . 210 

. . 242 

. . 307 

. . 274 

. . 289 

100, 101 

. . 116 

Bank 151 

. . 383 

104, 364, 

366 

. . 325 

. . 112 

. . 359 

282 

313 

154 

256 



Lackland v. Railroad Co. . 370 
Lafayette Ins. Co. v. French 201 
Lafayette P. R. Co. v. Rail- 
road Co 370 

Lahr v. Metr. El. R. R. Co . 374 

Lake Shore, &c. Ry. v. Ohio 85 

Lammon v. Feusier . . . 154 

Lane, In re 148 

Lane v. Cotton 140 

v. Dorman 353 

Lane Co. v. Oregon . 27, 29, 92 

Lange, Ex parte .... 324 

Lanier v. Galatas .... 283 

Lapeyre v. United States . 116 

Laramie Co. v. Albany Co. 334, 



Lascelles v. Georgia . 


. . 211 


Lassitter v. Lee 


. . 359 


Lawton v. Steele . 251, 


252, 347 


Leach v. Money 


. . 231 


Leathers v. Blessing . 


. . 132 


Le Bois v. Brarael 


. . 355 


Leeper v. Texas . . 


. . 150 


Leesing, In re . . 


. . 250 


Leffingwell v. Warren 


. . 46 


Legal Tender Case 


. . 92 



Legal Tender Cases 91. 106, 107 



72,77 
255, 349 
, 75,82 
United 

. 109 



Paga 
Lehigh Valley R. R. Co. v. 

Pennsylvania 68 

Leisy v. Hardin 
Leith v. Leith 
Leloup v. Mobile 
Lem Moon Sing 

States . . . 
Lemmon v. People 
Lennon, In re 
Lent v. Tillson . 
Leon v. Galceran 
Levan v. Millholland 
Lewis v. Few 

v. McElvain 

v. Webb . . 
Lewis Co. v. Hayes 
License Cases 22, 71 



77. 



. 208 

. 147 

. 246 

. 129 

. 350 

. 306 

. 356 

. 46 

. 185 
80. 257. 



338, 342 

License Tax Cases 80, 153, 257, 

338 

Lincoln v. Hapgood . . . 174 

v. Smith 257 

Lincoln Co. v. Luning . . 136 
Lindsay v. Commissioners . 163 
Lithograph Co. v. Sarony . 96 
Little v. Barreme . . 114, 176 
Liverpool, &c. Nav. Co. v. 

Phenix Ins. Co. . . 151, 198 
Livingston v. Jefferson . . 200 
Livingston Co. v. Weider . 380 
Livingstone's Lessee v. Morse 149 
Loan Ass'n v. Topeka . 56, 59 
Lockhart v. Craig St. Ry. 

Co 374 

v. Horn 359 

Logan v. Stogsdale ... 367 

v. United States . . 32, 107 

Lonas v. State 254 

Loney, In re 278 

Long v. Long 175 

Long Island W., &c. Co. v. 

Brooklyn 338 

Loomis v. Jackson .... 283 
Lord y. Steamship Co. . . 68 
Lothrop v. Stedman ... 46 

Lotty, The 131 

Loughborough v. Blake . . 103 
Louisiana v. Jumel . 130, 831 

v. New Orleans . . . 860 

v. Pilsbury 329 

Louisville Gas' Co. v. Citizens' 
Gas Co 336 



XX11 



TABLE OF CASES. 



Page 
Louisville, &c. R. R. Co. v. 

Wangelin 142 

Louisville, &c. Ry. Co. v. Mis- 
sissippi 80 

Low v. Austin 74 

v. Rees Printing Co. . 256 
Lowe v. Commonwealth . . 388 
Lowell v. Boston .... 59 
Lucas v. Sawyer . . . . 353 

v.Tucker 357 

Ludwig v. Steward .... 359 

Lusher v. Scites 173 

Luther v. Borden 25, 101, 157,215, 
217, 317, 383 
Luxton v. North River Bridge 

Co. . .1 85,367 

Lynch v. State 324 



M. 

Machine Co. v. Gage ... 82 
Mackin v. United States . . 318 
Madison R. R. Co. v. White- 
neck 167 

Mahon v. Justice .... 211 
Maine v. Grand Trunk Ry. . 83 
Mallett v. Dexter .... 153 
Manchester, Matter of . . 210 
Manchester v. Massachusetts 132 
Manning v. Amy .... 144 
Marbury v. Madison 115, 119, 121, 
128, 129, 176 
Marchant v. Penn. R. R. Co. 245, 
249, 372 
Markham v. Brown . . . 258 
Marsh v. Burroughs . 157, 344 

v. Ellsworth .... 303 
Marshall v. Donovan . . . 166 

v. Railroad Co. ... 330 
Martin v. Baltimore, &c. R. R. 144 

v. Hunter 27, 28, 106, 110, 
152 

v. Mott .... 100, 156 
Marye v. Baltimore, &c. R. R. 81 
Mather v. Ottawa .... 59 
Mattingly v. District of Co- 
lumbia 356 

Mattox v. United States 18, 223, 

387 

Maulsby v. Reifsnider . . 304 

Mauran v. Smith .... 176 



Mayberry v. Kelly . . . . 
Maynard v. Hill . . . . 
Mayor of New York, Matter 

of 

McAllister v. United States 



Page 
165 
185 



227 
118, 
186 
279, 388 
. 74 



McCafferty v. Guyer 
McCall v. California 

v. McDowell .... 317 
McCardle, Ex parte 46, 173, 177 
McCarty v. State .... 318 
McClellan v. Chipman . . 33 
McCormick v. Ives .... 131 
McCoy v. Grandy .... 362 
McCracken v. Hay ward 330, 343, 
360 
McCready v. Sexton ... 47 
v. Virginia . 132, 207, 208 
McCulloch v. Maryland 28, 57, 61, 
62, 107 
McDaniel v. Correll ... 357 
McElmoyle v. Peters . . 204 
McFadden v. Commonwealth 325 
McFarland v. Butler ... 359 
McGahey v. Virginia . . . 331 
McGee's Appeal .... 392 
McKane v. Durston . . . 319 
McKay v. Campbell ... 270 
McKenna v. Fiske .... 200 
McKinney v. O'Connor . . 283 
McMillan v. Anderson . . 246 
McNiel, Ex parte .... 151 
McPherson v. Blacker . . 52 
Meacham v. Dow . . 288, 330 
Meade v. Deputy Marshal . 156 
Medford v. Learned . . . 358 
Medley, Petitioner .... 313 
Medway v. Needham . . 199 
Memphis v. Brown . . . 155 
Memphis, &c. R. R. Co. v. 

Alabama 137 

Menard v. Goggan .... 137 
Merivale v. Carson . . . 307 
Merryman's Case . . 177, 317 
Messenger v. Mason . . . 127 
Metcalf v. Watertown 126, 137 
Metropolitan R. R. Co. v. 

District 103 

Metropolitan Tel. Co. v. Col- 
well Lead Co 369 

Metzger, Ex parte . . . 128 
Milburn, Ex parte .... 147 



TABLE OF CASES. 



XX111 



Page 

Miller v. Burch 248 

v. Dunn 358 

v. Grandy 59 

v. Mucker 174 

v. State 391 

v. United States . . 98, 105 
v. White 359 

Milligan, Ex parte 33, 99, 157, 244 

Milligan v. Hovey . 114, 156, 175, 
176, 317 

Mills, In re 318 

Mills y. Charleton . Ill, 356, 380 
v. Duryea . . . 203, 204 

Miner's Bank v. Iowa . . 185 

Minnesota v. Barber 

Minor v. Happersett 

Mirzan, Ex parte . . 

Mississippi v. Johnson 

Mississippi Mills v. Conn . 

Missouri v. Iowa .... 
v. Lewis 

Missouri, Kans., &c. Ry. v. 
flaber ....... 

M*ssouri Pac. Ry. Co. v. 

Humes. . . 245,250 

v. Maekey 250 

v. Nebraska .... 347 

Mitchell v. Deeds .... 358 

v. Lemon 232 

v. Murphy 345 

v. Smale 142 

Mobile v. Kimball . 

Mobile, &c. R. R. Co 

Monongahela Nav. 
United States 

Monroe v. Collins . 

Montana Co. v. St. Louis . 249 

Montello, The . . 69, 84, 130 



. . 77 
. 27,279 
. . 136 
. 25, 121 
265 
133 
249 



76 



22,84 

v. State 166 

Co. v. 

83, 84, 366 

. . . 279 



Montgomery v. Anderson 

v. Elston . . . 

v. Railway Co. 
Montross v. State . 
Moore v. Illinois 

v. Koubly . . 

v. Monroe . . 

v. Quirk . . . 

v. United States 
Moran v. New Orleans 

v. Sturges . . 
Mordooai v. Lindsay 
Morgan's S. S. Co. v. 
ana . . . . 



348 
. 62 
. 373 
. 46 
. 94 
. 185 
. 226 
. 62 
. 326 
73,80 
. 155 
. 348 
i- 
22,71 



Page 
Morley v. Lake Shore Ry. 

Co 343 

Mormon Church v. United 

States 107, 183 

Morris v. Gilmore .... 137 
v. Miss. Pac. Ry. Co. . 200 

v. Powell 280 

v. State 356 

Morrissey, In re .... 99 
Morton v. Sharkey . . . 185 

v. Skinner 209 

Moses v. State 201 

Moses Taylor, The ... 129 
Mostyn v. Fabrigas . . . 156 
Moyer v. Van de Vanter . 281 
Mugler v. Kansas 22, 251, 252, 257, 
338, 342 
Mullan v. United States . . 119 

Muller, In re 117 

Munday v. Rahway ... 54 

Mundy v. Monroe .... 343 

Munn v. Illinois . 260, 338, 351 

Munster v. Lamb .... 304 

Murphy, Ex parte .... 284 

Murphy v. People .... 352 

v. Ramsey . . 37, 175, 185 

Murray v. Charleston 128, 331, 

333 

v. County Commissioners 373 

Murray's Lessee v. Hoboken 

Land Co 242 

Myers v. Moffet 284 

Myrick v. Mich. Centr. R. R. 
Co 151 



N. 

Nash v. Page 261 

Nashua R. R. v. Lowell R. 

R. Corp 137 

National Bank v. United States 58 
v. Yankton Co. . . 37, 183 
Nations v. Johnson . . . . 203 
Neagle, In re ... 121, 146 
Neal v. Delaware .... 143 
Nefzger r. Railroad Co. . . 280 
Nelson v. St. Martin's Parish 343 

Now o. Walker % 

Newcum v. Kirtley .... 283 
New Hampshire v. Louisiana 135 
New Jersey v. Wilson 330, 336 



XXIV 



TABLE OF CASES. 



Page 

New Orleans v. Houston . 335 

v. Paine 121 

New Orleans Gas Co. v. La. 

Light Co. 262, 329, 336, 341, 
369 
New Orleans, &c. R. R. v. 

New Orleans 360 

New Orleans Water Works 

i\ La. Sugar Co. 128, 151, 329 

v. New Orleans . . . 176 

v. Rivers . . . 262, 336 

New York v. Miln .... 78 

v. Squire 250 

New York El. R. R. Co. v. 

Fifth Nat. Bank .... 374 
New York & N. E. R. R. Co. 

v. Bristol 340 

New York, N. H., &c. R. R. 

v. New York 71 

Nichols v. Bridgeport ... 365 

v. Mudgett 288 

Nielsen, Petitioner .... 148 

Noel v. Ewing 353 

Nolan v. State 325 

Norfolk, &c. R. R. Co. v. 

Pendleton ... 336 

v. Pennsylvania ... 74 

Norman v. Heist .... 242 

North State M. Co. v. Field 201 

Northern Pac. R. R. Co. v. 

Babcock 201 

Norton v. Shelby Co. . . . 173 

Nugent v. State 326 



O. 



Oakey v. Bennett .... 197 

Oatman v. Bond .... 360 

O'Brian v. Commonwealth . 325 

Ochiltree v. Railroad Co. . 344 

Ogden v. Saunders 36, 90, 172, 330, 

344, 361 

Ohio, &c. R. R. Co. v. Lackey 358 

v. Wheeler 137 

Olcott v. Supervisors . . . 151 
Old Dom. S. S. Co. v. 

McKenna 263 

Oler, The 131 

Oliver v. McClure .... 46 

Oliver Jordan, The ... 154 

Olney v. Wharf 372 



Pagt 

Omaha & N. P. Ry. Co. v. 

Janecek 372 

Opinion of Justices (138 

Mass.) 45 

Opinions of Judges (45 Me.) 281 

(58 Me.) 56 

(64 Me.) 288 

(6 Cush.) 383 

Ornelas v. Ruiz 148 

Orr v. Quimby 377 

Ortman v. Greenman . . . 165 
Osborn v. Bank of United 

States 62, 107, 126, 134, 

135, 136 

v. United States . . 116,117 



Osburn v. Stanley . . . 


. 172 


Oteiza, In re 


. 148 


Owensboro v. Hickman . 


. 280 


Owings v. Norwood . . 


. 127 


P. 

Pace v. Burgess .... 


58,87 


Pacific Ex. v. Seibert . . 


82, 250 


Pacific Ins. Co. v. Soule . 


. 64 


Pacific R. R. Removal Cases 126 


Pacific R. R. Co. v. Maguire 33, 




335 


Packet Co. v. Catlettsburg . 87 


v. Keokuk .... 


. 87 


Page v. Hardin . . -. . 


. 119 


v. Mathews's Admii 


lis- 


trator . . . 


. 46 


Palfrey v. Boston . . . 


62, 153 


Palmer v. Barrett . . . 


. 104 


v. Cuyahoga Co. . . 


. 84 


Pana v. Bowler . . -. . 


. 151 


Parham v. Justices . . . 


. 57 


Park v. Detroit Free Pr 


ess 


Co 


. 309 


Parker v. Overman . . . 


. 64 


v. United States . . 


. 115 


Parmelee v. Baldwin . . 


. 174 


v. Lawrence . . . 


. 356 


v. Thompson . . . 


. 46 


Parrott's Chinese Case . 


. 32 


Parsons v. Bedford . . 


. 264 


Parwin v. Weinberg . . 


. 281 


Passaic Bridges, The . . 


. 68 


Passenger Cases . . . 


66, 74 


Patterson v. Boom Co. . 


. 141 



TABLE OF CASES. 



XXV 



Page 
Patterson v. Kentucky . . 97 
Paul v. Virginia . . . 201, 207 
Paulsen v. Portland . .'■ . 246 
Pawlet v. Clark . . . 334, 379 
Paxton, &c. Ir. Co. v. Farm- 
ers' Ir. Co 368 

Pearce v. Texas 210 

Pearsall v. Gt. Northern Ry. 333 
Pearson v. Yewdall . . . 245 
Peavey y. Bobbins .... 175 
Peete v. Morgan .... 87 
Peik v. Chicago, &c. R. R. 

Co 259 

Pembina Mining Co. v. 
Pennsylvania . . . 207, 249 

Penn's Case 321 

Pennie v. Reis 331 

Pennoyer v. McConnaughy 136, 
331 

v. Neff 205 

Pennsylvania Co., In re . . 142 
Pennsylvania Hall, In re . 380 
Pennsylvania R. R. Co. v. 
Canal Commission- 
ers 337 

v. Duncan 334 

v. Lewis 339 

v. Lippincott .... 372 

v. Miller 339 

v. Riblet 167 

Pennsylvania S. V. R. R. 

Co. v. Walsh 372 

Pennsylvania Tel. Co., In re 39 
Pensacola Tel. Co. v. West 

U. Tel. Co. . . 39, 67, 68, 202 
People v. Barrett .... 325 

v. Bell 280 

v. Brady 210 

v. Brenahm 281 

v. Brooklyn 57 

v. Canaday 279 

v. Cicotte . . . . . 282 

v. Coleman 208 

v. Commissioner . . 65, 390 
v. Compagnie, &c. . 75, 87 

v. Cook 283 

v. Cowles 281 

v. Dawell . . . 255, 349 

v. Detroit 310 

v. Draper . . 168, 380, 385 
v. Durston . . . 173, 324 
v. Ferguson 282 



People v. Freeman .... 45 

v. Gallagher .... 255 

v. Gies 387 

v. Gillson 251 

v. Godfrey 104 

v. Goodwin 289 

v. Governor 176 

v. Hamberg 325 

v. Hartwell 281 

v. Hatch 119 

v. Havnor 256 

v. Hill 385 

v. Hilliard 288 

v. Hoffman 280 

v. Hurlbut . . . Ill, 378 

v. Kelsey Ill 

v. Kerr 374 

v. Kerrigan 321 

v. Kopplekom .... 280 
v. Lawrence . . 389, 390 

v. Lynch .... 358, 378 

v. Mahaney 168 

v. Matteson 282 

v. McElroy 391 

v. McManus .... 282 

v. Mortimer 322 

v. Osborn 45 

v. Plank Road Co. . . 340 

v. Potter 389 

v. Purdy 387 

v. Railroad Co. ... 290 

v. Railway Co. ... 340 

v. Ruggles 227 

v. Sackett 283 

v. Salomon 284 

v. Saxton 282 

v. Schroder 288 

v. Seaman 282 

v. Supervisors .... 358 

v. Tyler .... 323, 825 

Pereles v. Watertown . . . 359 

Perkins, Ex parte .... 827 

Perrett v. New Orleans 

Times 809 

Perrine v. Canal Co. . . . 248 

Perry ?>. Washburn ... 56 

v. Whittaker .... 289 
Pervear r. Commonwealth 18. 79 

Pholps v. Schroder .... 288 

Phenix Ins. Co., Ex parte . 131 
Philadelphia, &C. R. R. Co. 

v. Bowers 34Q 



XXVI 



TABLE OF CASES. 



Page 
Philadelphia S. S. Co. v. 

Pennsylvania 75 

Phillips v. Watson .... 368 
Phipps y. West. Md. R. R. 

Co 373 

Phoenix Ins. Co. v. Tennes- 
see 336 

330 

80 

. 312 

366, 369 

. 283 



Piatt v. People . . . 288 
Pickard v. Pullman Car Co. 
Pierce v. Carskadon . . . 

o. Drew . . . 
Pike Co. v. Barnes . 
Pingrey v. Washburn 
Piqua Bank v. Knoop 
Pitman v. Bump 
Pittock v. O'Neil . 
Pittsburg, &c. Coal Co. v. 

Bates 80, 83 

Pittsburgh, &c. Ry. Co. v. 

Backus ....... 

Pizano v. State .... 

Pleasant T'p v. Ins. Co. . 
Plessy v. Ferguson . . . 
Plumley v. Massachusetts 

Plymouth, The 131 

Poindexter v. Greenhow 94, 136, 

331, 343 

Pollard's Lessee v. Hagan 86, 195, 

364 

Pollock v. Farmers' Loan & 

Trust Co 64, 171 



340 
335 
359 
305 



82 
325 
151 

258 
77 



Pond v. People . . , 
Ponsford v. Johnson . 
Poole v. Fleeger . , 
Pope v. Curl .... 

v. Phifer .... 
Portland v. Bangor 
Postal Tel. Co. v. Adams 

v. Alabama . . . 

v. Charleston . . 
Pound v. Turck . . . 
Powell v. Pennsylvania 
Powers' Appeal . . . 
Pratt v. Tefft . . . 
Prentiss v. Brennan . 
Presser v. Illinois . . 
Preston v. Boston . . 
Price v. Baker . . . 
Prigg v. Pennsylvania 

Privett v. Bickford 
Prize Cases .... 



231 
199 
102 

96 
379 
248 

83 
141 

82 

83 
258 
375 
353 
272 
274 
348 
285 
152,212, 
236 
286 
114 



18, 



P«gt 

Prospect Park, &c. R R. 

Co. v. Williamson ... 370 

Protho v. Orr 390 

Prout v. Berry 46 

Providence, &c. Ry. Co. v. 

Norwich, &c. R, R. Co. . 370 
Pullen v. Commissioners . 57 
Pullman P. C. Co. v. Penn- 
sylvania 81 

Pumpelly v. Green Bay Co. 370 

Purcell v. Lawler .... 307 

Puterbaugh v. Smith ... 327 



Quarles & Butler, In re . . 107 
Queen of Portugal v. Grymes 133 
Quinn v. State 279 



Rahrer, In re . . . . 78, 111 

Rail v. Potts 175 

Railroad Commission Cases 261, 

341 

Railroad Co. v. Fuller . 80, 339 

v. Georgia . . . 150, 333 

v. Hecht 360 

v. Husen ... 71, 72, 76 
v. Jacksonville . . . 335 

v. McClure 33 

v. Peniston 62 

v. Reid 335 

v. Richmond ... 39, 67 
v. Tennessee .... 135 
Railroad Companies v. 

Gaines 333, 336 

Railway Co. v. McShane . 63 
v. Whitton .... 144, 152 
Rand v. Commonwealth . . 314 
Randall v. Evening News Ass. 306 
Randolph, Ex parte ... 166 
Randolph v. Good .... 279 

Rapier, In re 95, 309 

Rasmussen v. Baker . . . 389 
Ratterman v. West. Un. Tel. 

Co 82 

Ratzky v. People .... 313 



TABLE OF CASES. 



xxvn 



Page 
Rauenstein v. New York, 

&c. R. R. Co 371 

Ray v. Gas Co 329 

Read v. Plattsmouth . . . 354 
Reade v. Sweetzer .... 307 
Reagan v. Farmers' L. & T. 

Co 261 

v. Mercantile Trust Co. 33, 63 
Reardon v. San Francisco . 371 

Reel v. Elder 255 

Rees v. Watertown . . 54, 155 

Rees' Appeal 366 

Reeves v. Treasurer, &c. . 368 
Reformed Church v. School- 
craft .359 

Reggel, Ex parte . . 209, 210 
Regina v. Newman .... 308 
Reid v. Julian 283 

v. Norfolk City R. R. Co. 374 
Renner v. Bennett .... 285 
Reynolds, Ex parte . . . 270 
Reynolds v. Geary .... 257 

v. People 183 

v. Stockton 204 

v. United States . 185, 323 

Rhines v. Clark 265 

Rhode Island v. Massachu- 
setts 28, 133 

Rhodes v. Iowa 78 

Rice v. Austin 176 

v. Foster Ill 

Rich v. Chicago 375 

v. Flanders 361 

Richmond, &c. R. R. Co. v. 

Louisa, &c. R. R. Co. . . 369 
Ridings v. Johnson . . . . 151 
Riggs v. Johnson Co. . . . 154 
Rigney v. Chicago . . 371, 372 
Rio Grande R. R. Co. v. 

Gomila 154 

Rison v. Farr .... 279, 388 

Risser v. Hoyt 46 

Ritchie v. People .... 256 
Roach v. Van Riswick . . 103 
Robb v. Connolly .... 147 
Robbins v. Shelby Taxing 

Dist 67, 72, 74, 80, 82 

Roberts v. Boston .... 255 

v. Reilly .... 209, 210 
Robertson v. Baldwin . 152, 238 

v. Cease . . . 124, 136, 137 
Robinson, Ex parte . . 145, 327 



Rcbinson v. Anderson . . 137 

v. Swope 368 

Robinson's Case .... 257 
Roby v. Colehour .... 128 
Roche v. Waters .... 357 
Rockland W. Co. v. Cam- 
den, &c. Co 337 

Rogers v. Cincinnati . . . 154 

Rolston v. Com'rs .... 136 

Rosen v. United States . . 322 
Ross, In re ... 139, 318, 320 

Ross v. Davis 376 

v. Irving 362 

v. Leggett 232 

Routsong v. Wolf .... 356 

Rowning v. Goodchild . . 140 

Royall, Ex parte .... 147 
Rude v. St. Louis . . 371, 372 

Ruggles v. Simonton . . . 153 

Rundle v. Del. & R. Canal . 200 

Runge v. Franklin .... 303 

Runyan v. Coster .... 202 

Ryan v. Lynch 391 

v. Thomas 127 



S. 



San Antonio v. Gould . . 392 

Sanders v. Getchell . . . 175 

Sands v. Manistee Imp. Co. 84, 

86 

Satterlee v. Mathewson . . 354 

Savin, Petitioner .... 327 

Savings Bank v. Allen . . 356 

Sayles v. Davis ..... 62 

Schneider v. Detroit . . . 370 

Schoenheit v. Nelson . . . 360 

Scholey v. Rew 64 

Schollenberger v. Pennsyl- 
vania 77 

Schoonmacker v. Gilmore . 129 

Schurz v. Cook 331 

Scott v. Donald 78 

v. Jones ... 37, 134, 137 

v. Neely 151 

v. Sandford . 188, 236, 269 

v. Young America . . 131 

Scudder v. National Bank . 198 

Sears r. Cottrell 170 

Secomb v. Railroad Co. . . 367 

Secombe i\ Kittelson . . . 383 



XXV111 



TABLE OF CASES. 



Secretary v. McGarrahan . 121 
Setzler v. Pennsylvania, &c. 

R. R. Co 377 

Sharon v. Sharon .... 154 
Sharon Railway Co.'s Appeal 370 
Sheehy v. Kansas City . . 371 

Shelby v. Guy 150 

Shelton v. Tiffin .... 137 
Sherlock v. Allen .... 79 
Sherwood v. Fleming . . . 355 

Shields v. Ohio 334 

Shiner v. Jacobs .... 332 

Shipman, Re 90 

Shoe & L. Bank v. Wood . 198 
Shoemaker u. French . . . 153 

v. Nesbit 174 

Sholl v. German Coal Co. . 367 

Shonk v. Brown 355 

Shortridge v. Macon . . . 190 
Shotwell v. Moore .... 62 
Shumway v. Bennett . . 45, 54 

Shute v. Keyser 127 

Sidney's Case . . . 231, 315 
Siebold, Ex parte ... 36, 278 

Sill v. Corning 170 

v. Worswick .... 197 

Silverman, Re 90 

Simmons v. United States 266, 326 
Simon v. Durham .... 289 
Simons v. People .... 284 

Sims's Case 152 

Single v. Supervisors . . . 356 
Sinking Fund Cases . . . 341 
Sinks v. Reese . . . 103, 272 
Si.mot v. Davenport ... 73 
Sioux City Ry. Co. v. Sioux 

City 341 

Slabach v. Cushraan ... 98 

Slack v. Jacob 391 

Slaughter v. Commonwealth 208 

Slaughter-House Cases 29, 31, 80, 

248, 251, 260, 262, 273, 274 

Smith, Ex parte . . 148, 209 

Smith, Re 90 

Smith v. Alabama . . . 22, 71 

v. Brown 286 

v. Godfrey 198 

v. Good 384 

v. Maryland. . 18,132,207 

v. Moore 286 

». Myers 176 

v. Odell 185 



Paga 

Smith v. Powditch .... 140 

v. Speed Ib5 

v. Turner 88 

Smith Purifier Co. v. McGro- 

arty 148 

Smyth v. Ames . . . 261, 342 

Snow v. Perry 93 

Society, &c. v. New Haven . 137 

v. New London . . . 223 
Somerville, &c. R. R. Co. ads. 

Doughty 377 

Sommersett's Case . . . . 233 
Soon Hing v. Crowley 173, 249, 
250, 256 
Southern Pacific Co. v. Den- 
ton 202 

Southern Pac. R. R. Co. v. 

California 142 

Spalding v. Vilas . . 122, 176 
Spangler v. Jacoby . . . 391 
Sparf v. United States . . 321 
Spencer v. Board of Registra- 
tion 276 

Spies v. Illinois 18 

Spinney, Ex parte .... 257 

Spooner v. McConnell . . 187 

Spragins v. Houghton . . 280 

Sprague v. Pitt ..... 361 

Spraigue v. Thompson . . 70 
Spring Valley Water Works 

v. Schottler . . . 260, 341 

Springer v. United States . 64 

Sprott v. United States . . 191 

Sproule v. Frederick . . . 384 

Stanley, Ex parte .... 320 

Stanley v. Whipple ... 266 

Starr v. Pease 254 

State v. Baker 279 

v. Bennett 290 

v. Berg 289 

v. Brooks 321 

v. Brunswick .... 46 
v. Burnham . . . 297, 308 

v. Buzine 210 

v. Cameron 323 

». Chandler .... 227 

v. Clark ...... 171 

v. Commissioners . . . 171 

v. Cooler 813 

v. Corner 280 

v. Corson . . . 313, 322 

v. County Cora'rs . . 289 



TABLE OF CASES. 



XXIX 



State v. Demorest 
v. Denny 
v. District Board 
v. Doherty 
v. Donaldson 
v. Doron . 
v. Dousman 
v. Edwards 
v. Emery 
v. Erazier 
v. Gates . 
v. Gerhardt 
v. Gibbs . 
v. Gibson 
v. Goodwill 
v. Governor 
v. Gustin 
v. Guttenber 
v. Haben . 
v. Hairston 
v. Hallock 
v. Harrison 
v. Hill . 
v. Hilmantel 
v. HufTord 
v. Jackson 
v. Johnson 
v. Jones . 
v. Julow . 
v. Keith . 
v. Kelly . 
v. Learned 
v. Lewis . 
v. Ludington 
v. Manning 
v. Marlow 
v. McBride 
v. McCann 
v. McCraeken 
v. Medbury 
v. Miller . . 
v. Milwaukee G 
v. Newark 
v. Noble . 
v. O'Flaherty 
v. Olin . 
v. Orvis . 
v. Osawkee 
v. Paul . 
v. Pbillips 
v. Porter 
v. Purdy . 



Co 



Page 
. 356 
. 45 
. 226 

. 357 
. 391 
. 389 
. 171 
. 261 
. 326 
. 270 
. 282 

389, 391 
. 289 
. 254 
. 251 

176, 289 
. 62 
. 358 

334, 379 
. 254 
. 386 
. 289 
. 289 
. 284 
. 210 
. 254 
. 290 
. 359 

250, 256 
. 313 
. 103 
. 322 
. 290 
. 258 
. 313 
. 289 
. 383 
. 255 
. 392 
. 208 
. 390 
. '262 
57, 354 
. 387 
. 322 
. 288 
. 281 
, 59 
218 
325 
174 
, 288 



Page 

State v. Rich 166 

v. Ross 199 

v. Shelby 299 

v. Simons 54 

v. Smith 285 

v. State Canvassers . . 289 
v. Steamship Constitution 152 

v. Sullivan 286 

v. Symonds 279 

v. Tait 326 

v. Telephone Co. . . . 97 

v. Thomas 323 

v. Trumpf 286 

v. Tutty 254 

v. Walsh 281 

v. Warmouth .... 176 

v. Warren 355 

v. Williams . 238, 278, 388 

v. Wollem 284 

v. Woodruff P. C. Co. . 75 

u.Wright 352 

v. Wrightson .... 389 

v. Young 185 

State Bank v. Knoop . . . 150 

State Freight Tax Case . . 75 
State Tax on Foreign Held 

Bonds 331 

State Tax on R. R. Gross 

Receipts 75 

State Tonnage Tax Case . 87 
State Treasurer v. Railroad 

Co 153 

Stead v. Course . . .64, 862 

Steamboat Co. v. Barclay . 340 

Steamship Co. v. Jolliffe . 70 

v. Portwardens . . 73, !S7 

. 13- 



Co 



v. Tugman . . . 
Stearns v. United States 
Steele v. Calhoun . . 

v. County Com'rs 
Stein v. Bienville Water 
Stephens v. Wyatt 
Stevens, In re . . . 
Stevens v. Fuller . . 

v. Nichols . . . 
St. Joseph, &c. R. R. Co 

Buchanan Co. Court 
St. Louis v. Ferry Co. 

v. Hill . ." . . 

v. West. Un. Tel. Co, 
St. Louis, &c. Ry. Co. v. Gill 261, 

33a 



145 
152 
284 
367 
336 
286 
54 
MS 
136 



279 

87 



869 

83 



XXX 



TABLE OF CASES. 



Page 
St. Louis, &c. Ry. Co. v. 

James 137 

v. Vickers 33 

Stockdale v. Hansard . . 175 
Stokes v. People .... 313 
Stone v. Charlestown . . Ill 

v. Heath 376 

v. Mississippi 332, 333, 341 

v. South Carolina . . 144 

v. Yazoo, &c. R. R. Co. 342 

Storey v. Wallace .... 305 

St. Paul Un. Depot Co. v. 

St. Paul 370 

Strader v. Graham .... 195 
Strauder v. West Virginia 143, 248 
Strauss v. Meyer .... 303 
Strode v". Washer .... 361 
Strosser v. Fort Wayne . . 356 
Stuart w. Laird .... 159, 389 
Sturges v. Carter .... 358 
v. Crowningshield . 35, 90 
Sumner v. Beeler .... 173 
Supervisors v. Galbraith . 223 

v. People 391 

Supervisors of Election, Case 

of 54 

Surgett u. Lapice .... 159 
Susquehanna Canal Co. v. 

Wright 371 

Sutton v. Warren .... 199 
Sutton's Heirs v. Louisville 56 
Suydam v. Williamson . . 150 
Swain v. Seamans .... 344 
Swan v. Williams . . . 185 
Swearingen v. Morris . . 197 
Sweet v. Rechel .... 377 
Swindle v. Brooks .... 352 
Switzer v. Dyer . . 284, 289 



T. 

Tabor v. Cook 265 

Taggart v. Newport St. Ry. 

Co 374 

Talbot v. Hudson . . 368, 376 
Talcott v. Philbrick ... 281 
Talkington v. Lurner . . 282 
Taney v. Marshall ... 285 
Tarble's Case ... 35, 110, 147 
Tarbox v. Sughrue ... 284 
Tate, Ex parte 100 



Pagt 

Taylor v. Carryl .... 154 

v. Morton 32 

v. Palmer 57 

v. Place 45 



v. Porter 
v. Taintor 
v. Taylor 



242, 367 
. 209, 211 
283, 289, 389 
59 
140 
284 



334 



v. Ypsilanti 
Teall v. Felton 
Tebbe v. Smith 
Telegraph Co. v. Barnett 

v. Texas . . . 
Tennessee v. Davis 32, 

v. Sneed . . 

v. Whitworth 
Terrett v. Taylor 
Territory v. Lee 
Terry, Ex parte 
Terry v. Anderson 

v. Fellows . 
Texas v. Gaines 

v. White 17, 28, 29, 134, 
191 
Texas & P. Ry. Co. v. Cox 

v. Rosedale .... 
Thompson v. Lee County . 



75,82 
126, 143 
. 360 
336 
379 
183 
327 



Morgan 

v. United States 

v. Utah . . . 

v. Waters . . 

v. Whitman 
Thorington v. Smith 
Thornton, Ex parte . 
Thorpe v. Railroad Co 



?(03 
; ( 43 
190, 

?i5 

f01 
874 
358 
356 
326 
321 
202 
204 
191 
210 
250, ^35, 



Thurlow y. Massachusetts . 88 
Tide Water Co. v. Coster . 60 
Tindal v. Wesley .... 136 
Tioga R. R. Co. v. Bloss- 

burg, &c. R. R. Co. . . 149 
Tobey v. Bristol .... 153 

Tod v. Wick 76 

Toledo, &c. R. R. Co. v. 

Jacksonville 340 

Toll v. Wright 357 

Townsend v. Todd .... 150 
Trade Mark Cases .... 96 
Transportation Co. v. Chi- 
cago .... 342, 371 
v. Parkersburg .... 87 
v. Wheeling .... 87 
Trebilcock v. Wilson . 91, 93 



TABLE OF CASES. 



XXXI 



Page] 

Troutman, Matter of . . . 211 

Trumbull's Case .... 285 

Trustees v. McGaughey . 356 

Turner, Matter of .... 238 

Turner v. Commonwealth . 327 

v. Maryland .... 87 

Turnpike Co. v. State . . 337 

Twin City Bank v. Nebeker 51 

Twitchell v. Commonwealth 18 
Tyler, In re . . . . 136, 155 

Tyler v. Beacher .... 367 

v. Defrees 98 

Tyson v. School Directors 59, 350 



U. 



Underwood v. Lilly . . . 355 

Union Bank v. Hill ... 62 

Union Depot Co. v. Morton 366 

Union Ins. Co. v. Hoge . . 159 

United States v. Ames . . 133 

v. Anderson .... 157 

v. Anthony ..... 276 

v. Arredondo .... 117 

v. Avery 119 

v. Bainoridge .... 99 

v. Ballin 49 

v. Bevans . . . 106, 132 

v. Black 121 

v. Blaine 121 

v. Boyd .... 231, 322 
v. Brig Malek Adhel . 97 
v. Chicago . . . 132, 133 

v. Cisna 69 

v. Connor 331 

v. Coombs 107 

v. Cornell 103 

v. Cruikshanks 22, 27, 29, 31, 
274, 294, 295 

v. Curtis 107 

v. Dawson 320 

v. De Walt 318 

v. De Witt . 80, 153, 388 
v. Eliason . . . 114, 115 

v. Ferreira 54 

v. Fisher 107 

v. Fox 202 

v. Freeman .... 115 
v. Germaine .... 118 
v. Gettysburg El. By. 360 
v. Gilmore 159 







Page 


United States v. Gratiot . . 182 


v. Greathouse 105, 116, 315 


v. Hamilton . . 


. . 319 


v. Harris . . . 




81 
118 


v. Hartwell . . 


\ 


v. Healey . . . 


* 169, ^ 


v. Hoar .... 




360 
3, 158 


v. Holliday . . . 


.' 6 


v. Hudson . . . 


149, 304 


v. Jailer of Fayett 


B . . 145 


v. James Morrisoi 


» , . 84 


v. Jones . . 1 


52, 319, 364 


v. Kessler . 




97 
116 

59,79 


v. Klein . . . 




v. E. C. Knight C( 


). . 


v. Lancaster . 


. . 116 


v. Le Baron . 


. . 119 


v. Lee 




136 
12fi 


v. Lynch 




v. Marigold 


.' ! "94 


v. Marselis . . 


. . . 95 


v. McDonald . 


. . . 332 


v. Moore . . . 


. 118, 159 


v. Morris 


. . . 324 


v. Mouat 


. . . 118 


v. Norton . . 




116 

97 

118 

315 


v. Palmer 




v. Perkins . 




v. Pryor . 




v. Railroad Bridg< 


I '. ! 132 


v. Railroad Co. 


. . 62, 153 


v. Rauscher 


. . . 211 


v. Reading R. R. 


. . 266 


v. Reese 274, 2' 


18, 293, 294, 




338 


v. Reindeer . . 


. 155, 363 


v. Riley . . . 


. . 324 


v. Rodgers . . 




132 


v. Simpson . . 




186 


v. Smith . . . 




97 


v. Texas . . . 




158 


v. Thomasson . 




117 


v. Tinklepaugh 




118 


v. Tynen . . 




344 


v. Villato . . 




88 


v. Waddell . . 




107 


i'. Wagner . . 




188 


u. William, The 




70 


ik Wilson . . 




116 


v. Windom . . 




121 


v. Wong Kim Ar 


c 


270 


v. Zucker . . 


. 


. 323 



XXX11 



TABLE OF CASES. 



United States Bank v. Plant 

ers' Bank . . . 
University v. People 
Upshur Co. v. Rich 
Upton v. Hume . . 
Usher v. Colchester 
v. Severance . 



Page 

137 
335 
144 
306 
59 
306 



Vallandighara, Ex parte . . 128 
Valparaiso v. Chicago, &c. 

Ry. Co 370 

Van Brocklin v. Tennessee 63, 
153 
Vance v. Vandercook Co. 71, 78 
Vanderzee v. McGregor . . 297 
Vandeusen v. Newcomer . 248 
Van Home v. Dorrance . . 330 
Van Ness v. Pacard ... 7 
Van Slyke v. Insurance Co. 46 
Van Voorhis v. Brintnall . 199 
Veazie v. Moore ... 68, 69 
Veazie Bank v. Fenno 57, 68, 64 
Venice v. Murdock . . . 151 
Verner v. Verner .... 303 
Vicksburg, &c. R. R. v. Put- 
nam 266 

Vidal v. Girard's Executors 226 
Vincennes University v. Indi- 
ana 185 

Violett v. Violett .... 263 

Virginia, Ex parte 147, 241, 248 

Virginia v. Rives . . 240, 249 

v. Tennessee .... 102 

v. West Virginia . 134, 192 

Vogel v. Gruaz 324 

Voight v. Wright .... 77 
Von Hoffman v. Quincy 155, 343 
Voorhees, Matter of . .209,210 



W. 

Wabash Ry. Co. v. Illinois 79, 
342 
Wadleigh v. Veazie . . . 153 
Wahoo v. Dickinson ... 54 
Walker v. Harbor Commis- 
sioners 150 

v. Sanford 284 



Pag« 
18, 245 
. 360 
. 245 
. 116 
72,74 
. 249 



Walker v. Sauvinet . 

v. Whitehead „ . 
Wall, Ex parte . . . 
Wallach v. Van Riswick 
Walling v. Michigan . 
Walston v. Nevin . . 
Walworth v. Harris 
Wan Shing v. United States 
Ward v. Flood . . 

v. Maryland 62, 207, 208, 
Ware v. Hylton . . 
Waring v. Clark 
Warren v. Manis . 

v. Paul . . . 

v. Railroad Co. 
Washburn v. Milwaukee, &c. 
R. R. Co. . . 

v. Voorhies . . . 
Washington Avenue . 
Washington Bridge Co 

State 

Wason v. Walter . . 
Watkins, Ex parte . . 
Watson v. Mercer . . 
Way man v. Southard . 
Waymell v. Reed . . 
Weaver v. Lapsley 

v. Mississippi, &c. Co 

Webb v. Den 

Weber v. Harbor Commis- 
sioners 195, 364 

Webster v. Munger . . . 
Weckerly v. Geyer . . . 
Weimer v. Bunbury . . . 
Weiss v. Guerineau . . . 
Welch v. Cook . . . 331 
Wellington, Petitioner . . 

Wells, Ex parte 116 

Wells v. Bain . . . 383, 384 

v. Weston 380 

Welton v. Missouri 66, 71, 72, 74 
Westchester, &c. R. R. Co. 

v. Miles 248 

West. Un. Tel. Co. v. Ala- 



197 
32 

255 

273 
32 

131 
93 
62 

141 

376 

284 
379 

340 

307 
147 
355 

45 
198 

98 
374 
361 



198 
174 

362 
350 
336 
166 



Un. Tel. Co. v 

bama . . 

v. Indiana . . 

v. James . . 

v. Massachusetts 
v. Taggart . . 
v. Williams 
Westervelt v. Gregg 
Weston v. Charleston 



75,82 

. 250 

. 71 

. 81 

. 81 

. 369 

. 353 

. 62 



TABLE OF CASES. 



XXX111 



Page 
West River Bridge Co. v.Dix 338 



Wharton v. Wise . . 


. . 102 


Wheaton v. Peters . 


96, 149 


Wheeler's Appeal . 


. . 46 


Wheeler v. Jackson 


. . 359 


v. Knaggs . . , 


. . 93 


v. Patterson 


. . 175 


Wheeling Bridge Case 


. 70,85, 




88,95 



Wheeling, &c. Bridge Co. v. 

Wheeling Bridge Co. 248, 337 

Wheelock Election Case . 283 

Whitcomb's Case .... 327 

White v. Buchanan . . . 349 

v. Burnley 206 

v. Cannon 190 

v. County Commission- 
ers 377 

v. Crow 350 

v. Hart 33, 344 

v. Northwestern, &c. R. 

R. Co 373 

Whitehead v. Shattuck . . 151 
Whitely v. Mississippi, &c. 

Co 376 

Whitfield v. Le Despencer . 140 

Whiting v. Barney . . . 324 

Whitmore v. Harden . . . 185 

Whitney v. Richardson . . 362 

Whitwell, Ex parte ... 251 

Wightman v. Wightman . 199 

Wilcox v. Hunt 198 

v. Jackson 115 

Wilkerson v. Rust .... 258 

Wilkes's Case 230 

Wilkinson v. Greely . . . 266 
Willamette Bridge Co. v. 
Hatch . . . 22, 85, 86 
Willard v. People .... 
Williams ?;. Armroyd . . . 



v. Bruffy 
v. Cam mack 
v. City Ry. Co 
v. Mississippi 
v. Peyton 

v. Potter 284 

v. Stein 281 

v. Suffolk Tns. Co. . . 158 
Williamson v. New Jersey . 334 



195 
171 
... 205 
... 329 
... 57 
... 374 
194, 249, 294 
. . 64, 362 



Willson v. Blackbird Creek 

Marsh Co 

Wilson, Ex parte . . 148, 
Wilson v. Fitch .... 
v. McKenna .... 

v. Stratton 

v. Sullivan 

Wimmer v. Eaton .... 
Winona, &c. Land Co. v. 

Minnesota 

Wisconsin v. Doty .... 

v. Duluth 

v. Pelican Ins. Co. 135, 
Wisconsin Cent. R. R. Co. v. 

Price Co 

Wise v. Withers .... 
Wiswall v. Sampson . . . 
Withers v. Buckley . . . 
Witten v. Tomlinson . . . 
Wong Wing v. United States 

Wood, Re 148, 

Wood's Appeal . . . 
Woodruff v. Parham . 

v. Scruggs . . 

v. Trapnall . . . 
Woods v. Lawrence Co 
Woodward v. Supervisors 
Wooley v. Lyon . . 
Woollen v. Banker 
Worcester v. Georgia 
Work v. State . . . 
Worster v. Lake Co. . 
Wright v. Cradlebaugh 
Wurts v. Hoagland 



Y. 



84 
318 
307 
359 
198 
303 
282 

250 

185 

83 

200 



69, 



63 
156 
155 

69 
147 
32, 
109 
249 
384 

86 
356 
330 
223 
223 
198 

96 
176 
321 
200 
361 
249 



Yancy v. Yancy .... 359 
Yarborough, Ex parte 107, "278 
Yerger, Ex parte .... 128 
Yick Wo v. Hopkins 151/249. 260 



Zanesville v. Gas Light Co. 260 
Zeiler v. Chapman . . . 280 



CONSTITUTION" 



UNITED STATES OF AMERICA. 



We the people of the United States, in order to form a more 
perfect union, establish justice, insure domestic tranquillity, pro- 
vide for the common defence, promote the general welfare, and 
secure the blessings of liberty to ourselves and our posterity, do 
ordain and establish this Constitution for the United States 
of America. 

ARTICLE I. 

Sect. 1. All legislative powers herein granted shall be vested 
in a Congress of the United States, which shall consist of a Sen- 
ate and a House of Representatives. 

Sect. 2. The House of Representatives shall be composed 
of members chosen every second year by the people of the sev- 
eral States, and the electors in each State shall have the qualifi- 
cations requisite for electors of the most numerous branch of 
the State Legislature. 

No person shall be a Representative who shall not have at- 
tained to the age of twenty-five years, and been seven years a 
citizen of the United States, and who shall not, when elected, 
be an inhabitant of that State in which he shall be chosen. 

Representatives and direct taxes shall be apportioned among 
the several States which may be included within this Union, 
according to their respective numbers, which shall be deter- 
mined by ad ling to the whole number of free persons, includ- 
ing thor ./uund to service for a term of years, and excluding 
Indians not taxed, three fifths of all other persons. The actual 
enumeration shall be made within three years after the first 
meeting of the Congress of the United States, and within every 



XXXVI CONSTITUTION OF 

subsequent term of ten years, in such manner as they shall by 
Jaw direct. The number of Representatives shall not exceed 
one for every thirty thousand, but each State shall have at least 
one representative ; and until such enumeration shall be made, 
the State of New Hampshire shall be entitled to choose three, 
Massachusetts eight, Rhode Island and Providence Plantations 
one, Connecticut five, New York six, New Jersey four, Pennsyl- 
vania eight, Delaware one, Maryland six, Virginia ten, North 
Carolina five, South Carolina five, and Georgia three. 

When vacancies happen in the representation from any State, 
the Executive authority thereof shall issue writs of election to 
fill such vacancies. 

The House of Representatives shall choose their Speaker and 
other officers ; and shall have the sole power of impeachment. 

Sect. 3. The Senate of the United States shall be com- 
posed of two Senators from each State, chosen by the Legis- 
lature thereof, for six years ; and each Senator shall have 
one vote. 

Immediately after they shall be assembled in consequence of 
the first election, they shall be divided as equally as may be into 
three classes. The seats of the Senators of the first class shall 
be vacated at the expiration of the second year, of the second 
class at the expiration of the fourth year, and of the third 
class at the expiration of the sixth year, so that one third may 
be chosen every second year ; and if vacancies happen by resig- 
nation, or otherwise, during the recess of the Legislature of any 
State, the Executive thereof may make temporary appointments 
until the next meeting of the Legislature, which shall then fill 
such vacancies. 

No person shall be a Senator who shall not have attained to 
the age of thirty years, and been nine years a citizen of the 
United States, and who shall not, when elected, be an inhabitant 
of that State for which he shall be chosen. 

The Vice-President of the United States shall be President 
of the Senate, but shall have no vote, unless they be equally 
divided. 

The Senate shall choose their other officers, and also a Presi- 
dent pro tempore, in the absence of the Vice-President, or when 
he shall exercise the office of President of the United States. 

The Senate shall have the sole power to try all impeachments. 
When sitting for that purpose, they shall be on oath or affirma- 
tion. When the President of the United States is tried, the 



THE UNITED STATES. XXXVH 

Chief Justice shall preside : and no person shall be convicted 
without the concurrence of two thirds of the members present 

Judgment in cases of impeachment shall not extend further 
than to removal from office, and disqualification to hold and 
enjoy any office of honor, trust, or profit under the United 
States : but the party convicted shall nevertheless be liable and 
subject to indictment, trial, judgment, and punishment, accord- 
ing to law. 

Sect. 4. The times, places, and manner of holding elections 
for Senators and Representatives shall be prescribed in each 
State by the Legislature thereof ; but the Congress may at any 
time by law make or alter such regulations, except as to the 
places of choosing Senators. 

The Congress shall assemble at least once in every year, and 
such meeting shall be on the first Monday in December, unless 
they shall by law appoint a different day. 

Sect. 5. Each House shall be the judge of the elections, re- 
turns, and qualifications of its own members, and a majority of 
each shall constitute a quorum to do business ; but a smaller 
number may adjourn from day to day, and may be authorized 
to compel the attendance of absent members, in such manner, 
and under such penalties, as each House may provide. 

Each House may determine the rules of its proceedings, pun- 
ish its members for disorderly behavior, and, with the concur- 
rence of two thirds, expel a member. 

Each House shall keep a journal of its proceedings, and from 
time to time publish the same, excepting such parts as may in 
their judgment require secrecy ; and the yeas and nays of the 
members of either House on any question shall, at the desire of 
one fifth of those present, be entered on the journal. 

Neither House, during the session of Congress, shall, without 
the consent of the other, adjourn for more than three days, nor 
to any other place than that in which the two Houses shall be 
sitting. 

Sect. 6. The Senators and Representatives shall receive a 
compensation for their services, to be ascertained by law, and 
paid out of the Treasury of the United States. They shall in 
all cases, except treason, felony, and breach of the peace, be 
privileged from arrest during their attendance at the session o( 
their respective Houses, and in going to and returning from the 
same ; and for any speech or debate in either House they shall 
not be questioned in any other place. 



XXXV111 CONSTITUTION OP 

No Senator or Representative shall, during the time for which 
he was elected, be appointed to any civil office under the author- 
ity of the United States, which shall have been created, or the 
emoluments whereof shall have been increased, during such 
time ; and no person holding any office under the United States 
shall be a member of either House during his continuance in 
office. 

Sect. 7. All bills for raising revenue shall originate in the 
House of Representatives ; but the Senate may propose or con- 
cur with amendments as on other bills. 

Every bill which shall have passed the House of Representa- 
tives and the Senate shall, before it become a law, be presented 
to the President of the United States ; if he approve he shall 
sign it, but if not he shall return it with his objections to that 
House in which it shall have originated, who shall enter the ob- 
jections at large on their journal, and proceed to reconsider it. 
If after such reconsideration two thirds of that House shall 
agree to pass the bill, it shall be sent, together with the objec- 
tions, to the other House, by which it shall likewise be recon- 
sidered, and, if approved by two thirds of that House, it shall 
become a law. But in all such cases the votes of both Houses 
shall be determined by yeas and nays, and the names of the 
persons voting for and against the bill shall be entered on the 
journal of each House respectively. If any bill shall not be re- 
turned by the President within ten days (Sundays excepted) 
after it shall have been presented to him, the same shall be a 
law, in like manner as if he had signed it, unless the Congress 
by their adjournment prevent its return, in which case it shall 
not be a law. 

Eveiy order, resolution, or vote to which the concurrence of 
the Senate and House of Representatives may be necessary (ex- 
cept on a question of adjournment) shall be presented to the 
President of the United States ; and, before the same shall take 
effect, shall be approved by him, or, being disapproved by him, 
shall be repassed by two thirds of the Senate and House of Rep- 
resentatives, according to the rules and limitations prescribed in 
\^ the case of a bill. 

Sect. 8. The Congress shall have power, — 

To lay and collect taxes, duties, imposts, and excises to pay 
the debts and provide for the common defence and general wel- 
fare of the United States ; but all duties, imposts, and excises 
shall be uniform throughout the United States ; 



THE UNITED STATES. XXXIX 

To borrow money on the credit of the United States ; 

To regulate commerce with foreign nations, and among the 
several States, and with the Indian tribes; 

To establish an uniform rule of naturalization, and uniform 
laws on the subject of bankruptcies throughout the United 
States ; 

To coin money, regulate the value thereof, and of foreign 
coin, and fix the standard of weights and measures ; 

To provide for the punishment of counterfeiting the securi- 
ties and current coin of the United States; 

To establish post-offices and post-roads; 

To promote the progress of science and useful arts, by secur- 
ing for limited times to authors and inventors the exclusive 
right to their respective writings and discoveries; 

To constitute tribunals inferior to the Supreme Court; 

To define and punish piracies and felonies committed on the 
high seas, and offences against the law of nations; 

To declare war, grant letters of marque and reprisal, and 
make rules concerning captures on land and water; 

To raise and support armies, but no appropriation of money 
to that use shall be for a longer term than two years; 

To provide and maintain a navy ; 

To make rules for the government and regulation of the land 
and naval forces; 

To provide for calling forth the militia to execute the laws of 
the Union, suppress insurrections, and repel invasions; 

To provide for organizing, arming, and disciplining the mili- 
tia, and for governing such part of them as may be employed in 
the service of the United States, reserving to the States respec- 
tively, the appointment of the officers, and the authority of 
training the militia according to the discipline prescribed by 
Congress ; 

To exercise exclusive legislation, in all cases whatsoever, over 
such district (not exceeding ten miles square) as may, by ces- 
sion of particular States, and the acceptance of Congress, bo- 
come the seat of the government of the United States ; and to 
exercise like authority over all places purchased by the consent 
of the Legislature of the State in which the same shall be, for 
the erection of forts, magazines, arsenals, dock-yards, and other 
needful buildings; — and 

To make all laws which shall be necessary and proper for 
carrying into execution the foregoing powers, and all other DOW« 



r 



Xl CONSTITUTION OF 

ers vested by this Constitution in the government of the United 
States, or in any department or officer thereof. 

Sect. 9. The migration or importation of such persons as 
any of the States now existing shall think proper to admit, shall 
not be prohibited by the Congress prior to the year one thou- 
sand eight hundred and eight, but a tax or duty may be im- 
posed on such importation, not exceeding ten dollars for each 
person. 

The privilege of the writ of habeas corpus shall not be sus- 
pended, unless when in cases of rebellion or invasion the public 
safety may require it. 

No bill of attainder or ex post facto law shall be passed. 

No capitation or other direct tax shall be laid, unless in pro- 
portion to the census or enumeration herein before directed to 
be taken. 

No tax or duty shall be laid on articles exported from any State. 

No preference shall be given by any regulation of commerce 
or revenue to the ports of one State over those of another ; nor 
shall vessels bound to, or from, one State, be obliged to enter, 
clear, or pay duties in another. 

No money shall be drawn from the treasury, but in conse* 
quence of appropriations made by law ; and a regular statement 
and account of the receipts and expenditures of all public 
money shall be published from time to time. 

No title of nobility shall be granted by the United States; 
and no person holding any office of profit or trust under them 
shall, without the consent of the Congress, accept of any pres- 
ent, emolument, office, or title, of any kind whatever, from any 
king, prince, or foreign state. 

Sect. 10. No State shall enter into any treaty, alliance, or 
confederation; grant letters of marque and reprisal; coin 
money; emit bills of credit; make anything but gold and silver 
coin a tender in payment of debts ; pass any bill of attainder, 
xx post facto law, or law impairing the obligation of contracts, 
or grant any title of nobility. 

No State shall, without the consent of the Congress, lay any 
imposts or duties on imports or exports, except what may be 
absolutely necessary for executing its inspection laws ; and the 
net produce of all duties and imposts, laid by any State on im- 
ports or exports, shall be for the use of the treasury of the 
United States ; and all such laws shall be subject to the revision 
and control of the Congress. 



THE UNITED STATES. xli 

No State shall, without the consent of Congress, lay any duty 
of tonnage, keep troops or ships of war in time of peace, enter 
into any agreement or compact with another State, or with a 
foreign power, or engage in war, unless actually invaded, or in 
such imminent danger as will not admit of delay. 

ARTICLE II. 

Sect. 1. The executive power shall be vested in a Presi- 
dent of the United States of America. He shall hold his office 
during the term of four years, and, together with the Vice- 
President, chosen for the same term, be elected as follows : — 

Each State shall appoint, in such manner as the Legislature 
thereof may direct, a number of Electors equal to the whole 
number of Senators and Representatives to which the State 
may be entitled in the Congress: but no Senator or Representa- 
tive, or person holding an office of trust or profit under the 
United States, shall be appointed an Elector. 

[The Electors shall meet in their respective States, and vote 
by ballot for two persons, of whom one at least shall not be an 
inhabitant of the same State with themselves. And they shall 
make a list of all the persons voted for, and of the number of 
votes for each ; which list they shall sign and certify, and trans- 
mit sealed to the seat of the government of the United States, 
directed to the President of the Senate. The President of the 
Senate shall, in the presence of the Senate and House of Rep- 
resentatives, open all the certificates, and the votes shall then 
be counted. The person having the greatest number of votes 
shall be the President, if such number be a majority of the 
whole number of Electors appointed ; and if there be more than 
one who have such majority, and have an equal number of 
votes, then the House of Representatives shall immediately 
choose by ballot one of them for President ; and if no person 
have a majority, then from the five highest on the list the said 
House shall in like manner choose the President. But in choos- 
ing the President, the votes shall be taken by States, the repre- 
sentation from each State having one vote ; a quorum for this 
purpose shall consist of a member or members from two thirds 
of the States, and a majority of all the States shall be necessary 
to a choice. In every case, after the choice of the President, 
the person having the greatest number of votes of the Electors 
shall be the Vice-President. But if there should remain two or 



xlii CONSTITUTION OP 

more who have equal votes, the Senate shall choose from them 
by ballot the Vice-President. — Repealed by Amendment XII.] 

The Congress may determine the time of choosing the Elec- 
tors, and the day on which they shall give their votes ; which 
day shall be the same throughout the United States. 

No person except a natural-born citizen, or a citizen of the 
United States at the time of the adoption of this Constitution, 
shall be eligible to the office of President ; neither shall any per- 
son be eligible to that office who shall not have attained to the 
age of thirty-five years, and been fourteen years a resident 
within the United States. 

In case of the removal of the President from office, or of his 
death, resignation, or inability to discharge the powers and 
duties of the said office, the same shall devolve on the Vice- 
President, and the Congress may by law provide for the case of 
removal, death, resignation, or inability, both of the President 
and Vice-President, declaring what officer shall then act as 
President, and such officer shall act accordingly, until the 
disability be removed, or a President shall be elected. 

The President shall, at stated times, receive for his services a 
compensation, which shall neither be increased nor diminished 
during the period for which he shall have been elected, and he 
shall not receive within that period any other emolument from 
the United States, or any of them. 

Before he enter on the execution of his office, he shall take 
the following oath or affirmation : — " I do solemnly swear (or 
affirm) that I will faithfully execute the office of President of 
the United States, and will, to the best of my ability, perserve, 
protect, and defend the Constitution of the United States." 

Sect. 2. The President shall be commander-in-chief of the 
army and navy of the United States, and of the militia of the 
several States, when called into the actual service of the United 
States; he may require the opinion, in writing, of the principal 
officer in each of the executive departments, upon any subject 
relating to the duties of their respective offices, and he shall 
have power to grant reprieves and pardons for offences against 
the United States, except in cases of impeachment. 

He shall have power, by and with the advice and consent of 
the Senate, to make treaties, provided two thirds of the Senators 
present concur ; and he shall nominate, and, by and with the ad- 
vice and consent of the Senate, shall appoint ambassadors, other 
public ministers, and consuls, judges of the Supreme Court, and 



THE UNITED STATES. xliii 

all other officers of the United States, whose appointments are 
not herein otherwise provided for, and which shall be established 
by law ; but the Congress may by law vest the appointment of 
such inferior officers, as they think proper, in the President 
alone, in the courts of law, or in the heads of departments. 

The President shall have power to fill up all vacancies that 
may happen during the recess of the Senate, by granting com- 
missions which shall expire at the end of their next session. 

Sect. 3. He shall from time to time give to the Congress 
information of the state of the Union, and recommend to their 
consideration such measures as he shall judge necessary and 
expedient ; he may, on extraordinary occasions, convene both 
Houses, or either of them, and in case of disagreement between 
them, with respect to the time of adjournment, he may adjourn 
them to such time as he shall think proper; he shall receive 
ambassadors and other public ministers ; he shall take care that 
the laws be faithfully executed, and shall commission all the 
officers of the United States. 

Sect. 4. The President, Vice-President, and all civil officers 
of the United States, shall be removed from office on impeach- 
ment for, and conviction of, treason, bribery, or other high 
crimes and misdemeanors. 



ARTICLE III. 

Sect. 1. The judicial power of the United States shall be 
vested in one Supreme Court, and in such inferior courts as the 
Congress may from time to time ordain and establish. The 
judges, both of the Supreme and inferior courts, shall hold their 
offices during good behavior, and shall, at stated times, receive 
for their services a compensation, which shall not be diminished 
during their continuance in office. 

Sect. 2. The judicial power shall extend to all cases, in law 
and equity, arising under this Constitution, the laws of "the 
United States, and treaties made, or which shall be made, under 
their authority ; to all cases affecting ambassadors, other public 
ministers, and consuls ; to all cases of admiralty and maritime 
jurisdiction ; to controversies to which the United States shall 
be a party ; to controversies between two or more States, be- 
tween a State and citizens of another State, between citizens of 
different States, between citizens of the same State claiming 
lands under grants of different States, and between a State, or 
the citizens thereof, and foreign states, citizens, or subjects. 



Sliv CONSTITUTION OF 

In all cases affecting ambassadors, other public ministers, and 
consuls, and those in which a State shall be party, the Supreme 
Court shall have original jurisdiction. In all the other cases 
before mentioned, the Supreme Court shall have appellate juris- 
diction, both as to law and fact, with such exceptions, and under 
such regulations, as the Congress shall make. 

The trial of all crimes, except in cases of impeachment, shall 
be by jury .; and such trial shall be held in the State where the 
said crimes shall have been committed ; but when not committed 
within any State, the trial shall be at such place or places as the 
Congress may by law have directed. 

Sect. 3. Treason against the United States shall consist 
only in levying war against them, or in adhering jto their ene- 
mies, giving them aid and comfort. No person shall be con- 
victed of treason unless on the testimony of two witnesses to the 
same overt act, or on confession in open court. 

The Congress shall have power to declare the punishment of 
treason, but no attainder of treason shall work corruption of 
blood, or forfeiture, except during the life of the person at- 
tainted. \yS ~- 

ARTICLE IV. 

Sect. 1. Full faith and credit shall be given in each State 
to the public acts, records, and judicial proceedings of every 
other State. And the Congress may by general laws prescribe 
the manner in which such acts, records, and proceedings shall be 
proved, and the effect thereof. 

Sect. 2. The citizens of each State shall be entitled to all 
privileges and immunities of citizens in the several States. 

A person charged in any State with treason, felony, or other 
crime, who shall flee from justice, and be found in another 
State, shall, on demand of the executive authority of the State 
from which he fled, be delivered up, to be removed to the State 
having jurisdiction of the crime. 

No person held to service or labor in one State, under the laws 
thereof, escaping into another, shall, in consequence of any law 
or regulation therein, be discharged from such service or labor, 
but shall be delivered up on claim of the party to whom such 
service or labor may be due. 

Sect. 3. New States may be admitted by the Congress into 
this Union ; but no new State shall be formed or erected within 
the jurisdiction of any other State; nor any State be formed by 
the junction of two or more States, or parts of States, without 



THE UNITED STATES. xlv 

the consent of the Legislatures of the States concerned, as well 
as of the Congress. 

The Congress shall have power to dispose of and make all 
needful rules and regulations respecting the territory or other 
property belonging to the United States; and nothing in this 
Constitution shall be so construed as to prejudice any claims of 
the United States, or of any particular State. 

Sect. 4. The United States shall guarantee to every State 
in this Union a republican form of government, and shall pro- 
tect each of them against invasion ; and on application of the 
Legislature, or of the Executive (when the Legislature cannot 
be convened), against domestic violence. 

ARTICLE V. 

The Congress, whenever two thirds of both houses shall deem 
it necessary, shall propose amendments to this Constitution, or, 
on the application of the Legislatures of two thirds of the several 
States, shall call a convention for proposing amendments, which, 
in either case, shall be valid to all intents and purposes, as part 
of this Constitution, when ratified by the Legislatures of three 
fourths of the several States, or by conventions in three fourths 
thereof, as the one or the other mode of ratification may be pro- 
posed by the Congress; provided that no amendment which 
may be made prior to the year one thousand eight hundred and 
eight shall in any manner affect the first and fourth clauses in 
the ninth section of the first article; and that no State, without 
its consent, shall be deprived of its equal suffrage in the 
Senate. 

ARTICLE VI. 

All debts contracted and engagements entered into, before the 
adoption of this Constitution shall be as valid against the United 
States under this Constitution as under the Confederation. 

This Constitution, and the laws of the United States which 
shall be made in pursuance thereof, and all treaties made, or 
which shall be made, under the authority of the United States, 
shall be the supreme law of the land; and the judges in every 
State shall be bound thereby, anything in the constitution or 
laws of any State to the contrary notwithstanding. 

The Senators and Representatives before mentioned, and the 
members of the several State Legislatures, and all executive and 



XM CONSTITUTION, ETC. 

judicial officers, both of the United States and of the several 
States, shall be bound by oath or affirmation to support this 
Constitution; but no religious test shall ever be required as a 
qualification to any office or public trust under the United States. 

ARTICLE VII. 

The ratification of the conventions of nine States shall be 
sufficient for the establishment of this Constitution between the 
States so ratifying the same. 

Done in Convention, by the unanimous consent of the States 
present, the seventeenth day of September, in the year of our 
Lord one thousand seven hundred and eighty-seven, and of 
the Independence of the United States of America the twelfth. 
Ett SBSttttess whereof we have hereunto subscribed our names. 

[Signed by] G° : Washington, 

Presidt. and Deputy from Virginia, 
and by thirty-nine delegates. 



ARTICLES 

IN ADDITION TO, AND AMENDMENT OF, 

THE CONSTITUTION OF THE UNITED STATES OF AMERICA. 



ARTICLE I. 

Congress shall make no law respecting an establishment of 
religion, or prohibiting the free exercise thereof; or abridging 
the freedom of speech, or of the press, or the right of the people 
peaceably to assemble, and to petition the government for a re- 
dress of grievances. 

ARTICLE II. 

A well regulated militia being necessary to the security of a 
free state, the right of the people to keep and bear arms shall 
not be infringed. 

ARTICLE III. 

No soldier shall, in time of peace, be quartered in any house, 
without the consent of the owner, nor in time of war, but in a 
manner to be prescribed by law. 



ARTICLE IV. 

The right of the people to be secure in their persons, houses, 
papers, and effects, against unreasonable searches and seizures, 
shall not be violated, and no warrants shall issue but upon 
probable cause, supported by oath or affirmation, and particu- 
larly describing the place to be searched, and the persons or 
things to be seized. 



xlviii CONSTITUTION OF 

ARTICLE V. 

No person 'shall be held to answer for a capital, or otherwise 
infamous crime, unless on a presentment or indictment of a 
grand jury, except in cases arising in the land or naval forces, 
or in the militia, when in actual service in time of war or public 
danger ; nor shall any person be subject for the same offence to 
be twice put in jeopardy of life or limb ; nor shall be compelled 
in any criminal case to be a witness against himself, nor be de- 
prived of life, liberty, or property, without due process of law ; 
nor shall private property be taken for public use without just 
compensation. 

ARTICLE VI, 

In all criminal prosecutions, the accused shall enjoy the right 
to a speedy and public trial, by an impartial jury of the State 
and district wherein the crime shall have been committed, which 
district shall have been previously ascertained by law, and to be 
informed of the nature and cause of the accusation ; to be con- 
fronted with the witnesses against him ; to have compulsory 
process for obtaining witnesses in his favor, and to have the 
assistance of counsel for his defence. 

ARTICLE VII. 
In suits at common law, where the value in controversy shall 
exceed twenty dollars, the right of trial by jury shall be pre- 
served, and no fact tried by a jury shall be otherwise re-exam- 
ined in any court of the United States, than according to the 
rules of the common law. 

ARTICLE VIII. 

Excessive bail shall not be required, nor excessive fines im- 
posed, nor cruel and unusual punishments inflicted. 

ARTICLE IX. 

The enumeration in the Constitution, of certain rights, shall 
not be construed to deny or disparage others retained by the 
people. 

ARTICLE X. 

The powers not delegated to the United States by the Consti- 
tution, nor prohibited by it to the States, are reserved to the 
States respectively, or to the people. 



THE UNITED STATES. xlix 

ARTICLE XI. 

The judicial power of the United States shall not be construed 
to extend to any suit in law or equity, commenced or prosecuted 
against one of the United States by citizens of another State, or 
by citizens or subjects of any foreign state. 

ARTICLE XII. 

The Electors shall meet in their respective States, and vote by 
ballot for President and Vice-President, one of whom, at least, 
shall not be an inhabitant of the same State with themselves ; 
they shall name in their ballots the person voted for as Presi- 
dent, and in distinct ballots the person voted for as Vice-Presi- 
dent ; and they shall make distinct lists of all persons voted for 
as President, and of all persons voted for as Vice-President, and 
of the number of votes for each, which lists they shall sign and 
oertify, and transmit sealed to the seat of the government of the 
United States, directed to the President of the Senate ; — the 
President of the Senate shall, in the presence of the Senate and 
House of Representatives, open all the certificates, and the 
votes shall then be counted; — the person having the greatest 
number of votes for President shall be the President, if such 
number be a majority of the whole number of Electors ap- 
pointed; and if no person have such majority, then from the 
persons having the highest numbers not exceeding three on the 
list of those voted for as President, the House of Representatives 
shall choose immediately, by ballot, the President. But in 
choosing the President, the votes shall be taken by States, the 
representation from each State having one vote ; a quorum for 
this purpose shall consist of a member or members from two 
thirds of the States, and a majority of all the States shall be 
necessary to a choice. And if the House of Representatives 
shall not choose a President, whenever the right of choice shall 
devolve upon them, before the fourth day of March next follow- 
ing, then the Vice-President shall act as President, as in the 
case of the death or other constitutional disability of the Presi- 
dent. The person having the greatest number of votes as Vice- 
President shall be the Vice-President, if such number be a 
majority of the whole number of Electors appointed, and if no per- 
son have a majority, then from the two highest numbers on the 
list the Senate shall choose the Vice-President; a quorum tor 
the purpose shall consist of two thirds of the whole number 



1 CONSTITUTION OF 

of Senators, and a majority of the whole number shall be neces- 
sary to a choice. But no person constitutionally ineligible to 
the office of President shall be eligible to that of Vice-President 
of the United States. 

ARTICLE XIII. 

Sect. 1. Neither slavery nor involuntary servitude, except 
as a punishment for crime whereof the party shall have been 
duly convicted, shall exist within the United States, or any 
place subject to their jurisdiction. 

Sect. 2. Congress shall have power to enforce this article 
by appropriate legislation. 

ARTICLE XIV. 

Sect. 1. All persons born or naturalized in the United States, 
and subject to the jurisdiction thereof, are citizens of the United 
States and of the State wherein they reside. No_State shall 
make or enforce any law which shall abridge the privileges or 
immunities of citizens of the United States ; nor shall any State 
deprive any person of life, liberty, or property, without due 
process of law ; nor deny to any person within its jurisdiction 
the equal protection of the laws. 

Sect. 2. Representatives shall be apportioned among the 
several States according to their respective numbers, counting 
the whole number of persons in each State, excluding Indians 
not taxed. But when the right to vote at any election for the 
choice of Electors for President and Vice-President of the 
United States, Representatives in Congress, the executive and 
judicial officers of a State, or the members of the Legislature 
thereof, is denied to any of the male inhabitants of such State, 
being twenty-one years of age and citizens of the United States^ 
or in any way abridged, except for participation in rebellion or 
other crime, the basis of representation therein shall be reduced 
in the proportion which the number of such male citizens shall 
bear to the whole number of male citizens twenty-one years of 
age in such State. 

Sect. 3. No person shall be a Senator or Representative in 
Congress, or Elector of President and Vice-President, or hold 
any office, civil or military, under the United States, or under 
any State, who, having previously taken an oath, as a member of 
Congress, or as an officer of the United States, or as a member 



THE UNITED STATES. K 

of any State Legislature, or as an executive or judicial officer of 
any State, to support the Constitution of the United States, 
shall have engaged in insurrection or rebellion against the same, 
or given aid or comfort to the enemies thereof. But Congress 
may, by a vote of two thirds of each House, remove such dis- 
ability. 

Sect. 4. The validity of the public debt of the United States, 
authorized by law, including debts incurred for payment of 
pensions and bounties for services in suppressing insurrection 
or rebellion, shall not be questioned. But neither the United 
States, nor any State shall assume or pay any debt or obligation 
incurred in aid of insurrection or rebellion against the United 
States, or any claim for the loss or emancipation of any slave ; 
but all such debts, obligations, and claims shall be held illegal 
and void. 

Sect. 5. The Congress shall have power to enforce, by ap- 
propriate legislation, the provisions of this article. 

ARTICLE XV. 

Sect. 1. The right of citizens of the United States to vote 
shall not be denied or abridged by the United States, or by 
any State, on account of race, color, or previous condition of 
servitude. 

Sect. 2. The Congress shall have power to enforce this 
article by appropriate legislation. 



CONSTITUTIONAL LAW 



CONSTITUTIONAL LAW. 



CHAPTER I. 

THE RISE OF THE AMERICAN UNION. 

Independence. — The declaration which severed the polit- 
ical connection between the thirteen American Colonies and 
the British Crown bears date July 4, 1776, and was made 
by the representatives of the Colonies in General Congress 
assembled, severally empowered by the respective Colonies 
to make it. By this manifesto the representatives declare 
to the world that " appealing to the Supreme Judge of the 
world for the rectitude of our intentions, [we] do, in the 
name and b}' authorit}' of the good people of these Colo- 
nies, solemnly publish and declare, that these United Col- 
onies are, and of right ought to be, free and independent 
States ; that they are absolved from all allegiance to the 
British Crown, and that all political connection between 
them and the state of Great Britain is, and ought to 
be, totally dissolved ; and that, as free and independent 
States, the}' have full power to levy war, conclude peace, 
contract alliances, establish commerce, and to do all other 
acts and things which independent States may of right do." 
For more than a year previous to this the Colonies had 
been in the exercise of sovereign powers in hostility to 
the government of Great Britain, but without a repudia- 
tion of their allegiance ; and they now severally assumed 
the position of independent Slules, limited only by the 



4 CONSTITUTIONAL LAW. 

concessions of authority, mostly tacit, which they made 
to their general Congress. 

Colonial Legislation. — The people of the Colonies had 
previously exercised a somewhat indefinite power to make 
their own laws, which was very general in some Colonies 
and greatly restricted in others. In all of them the pro- 
prietary or royal governor might defeat legislation by re- 
fusing his assent ; and in some a council not chosen by 
the people formed a second legislative chamber, whose 
concurrence was necessary. Colonial legislation was also 
sometimes nullified in England, by the authority of an 
executive board or council, or by Parliament. Parliament 
itself also exercised the power to make laws for the 
Colonies, and in some cases the power was conceded, 
though its exercise in particular instances was com- 
plained of as an abuse, while in other cases the power 
itself was denied. It was conceded that, in all matters 
of what may be denominated imperial concern, the com- 
mon legislature of the realm must legislate for all the 
dominions of the Crown, and that under this head fell 
the commerce of the Colonies with the mother country 
and with other nations and colonies. The most severe 
instances of the exercise of this authority were the 
Navigation Laws and the laws respecting manufactures 
in the Colonies, the general purpose of which was to sub- 
ject the commerce and manufactures of the Colonies to 
such regulations and restraints as should be beneficial to 
the commerce and general business interests of the mother 
country. It was never disputed that the Colonies, like 
all other portions of the British dominions, must necessa- 
rily come under the control of the Crown and the Parlia- 
ment in respect to all their foreign relations ; and, though 
Indian affairs were for the most part left to the control 
and management of colonial authorities, yet these also 
were brought under imperial control to any extent that 
to the home government at any time seemed politic or 
desirable. 



RISE OF THE AMERICAN UNION. 5 

The distinct claim of a right in the Colonies to make 
their own laws was not made until Parliamentary legisla- 
tion appeared to threaten oppression. The first actual re- 
sistance which assumed general importance was when an 
attempt was made to impose internal taxation by authority 
of the imperial Parliament. The proposed taxes were not 
in themselves a serious burden, and might possibly have 
passed unchallenged, if it had been certain that the tax law 
was not to be the herald and the pioneer of others of a dif- 
ferent sort, and which would touch the colonists in particu- 
lars in which they were even more sensitive than in respect 
to their pecuniary interests. The power which could tax 
New England could impose an episcopal hierarchy upon it, 
and the disposition to do this, not only in New England 
but in New York, had often manifested itself to an extent 
that excited the most serious alarm. What vital powers of 
sovereignty in respect to American concerns might be as- 
serted and exercised, no one could foresee ; and the tax 
laws were therefore resisted rather as the representatives 
of unknown dangers than for the burdens they imposed. 
The government for a time abstained from pushing its 
claims to an extreme, but, lest its doing so might be 
understood as an assent to the claims of the Colonies, 
Parliament, when repealing tlie Stamp Act, which had 
been rendered abortive by the resistance of the people, 
took occasion to assert an unqualified right to legislate for 
the Colonies on all subjects whatever. 1 This claim after- 
wards assumed practical form in an attempt to collect a 
tax on tea imported for consumption in the Colonies. 
The levy of the tax was resisted as an invasion of the 
undoubted rights of Englishmen, who, in taking up their 
home in the Colonies, had not lost their right to the 
protection of the ancient laws of the realm. In Massa- 
chusetts and New York cargoes o[' the taxed tea were 
destroyed by armed mobs ; in Maryland the importer was 

1 Pitkin, Hist, of U. S., eh. G ; Frothingham, Rise of the Republic, 
ch. 5, 0. 



6 CONSTITUTIONAL LAW. 

compelled to set fire to the vessel by means of which he 
had offended, and in other colonies the taxed commodity 
was either refused a landing, or not suffered to be sold 
after the landing had been effected ; and the tax law was 
by these means completely nullified. 1 

Liberty a Birthright. — The resistance in the cases 
mentioned, and in some others, was grounded on the claim 
that the colonists, as Englishmen, according to the Consti- 
tution of the realm, were entitled to certain rights which 
the government was attempting to override by the exercise 
of tyrannical power. 2 The evidence of these rights was to 
be found in part in certain historical documents which in 
both England and America had been looked upon and re- 
vered as the charters of liberty. The first of these was 

Magna Charta, extorted from King John in 1215, as a 
restriction upon what was then an almost unlimited kingly 
power ; the most important provision of which was, that 
"No freeman shall be taken or imprisoned or disseized 
or outlawed or banished or anyways destroyed, nor will 
the King pass upon him or commit him to prison, unless 
by the judgment of his peers or the law of the land." In 
the same instrument is foreshadowed parliamentary taxa- 
tion in the clause which requires the common consent of 
the realm to the levy of unusual burdens. 3 Grounded 
upon this charter the fabric of constitutional liberty was 
slowly and patiently erected ; parliamentary institutions 
acquired form and strength under the House of Lancas- 
ter ; and though the promise of a regular administration of 
the law was as often violated as kept, the right of the sub- 
ject to its benefits was never surrendered, and at length, 
at the beginning of the reign of Charles I., it received 
further assurance and confirmation in the royal assent to 

1 Frothingham, Rise of the Republic, ch. 5 ; Pitkin, Hist, of U. S., 
ch. 7. 

2 Pitkin, Hist, of U. S., ch. 3. 

3 Blackstone's Charters ; 4 Bl. Com. 424 ; Story on Const., § 1779; 
Stubbs, Const. Hist., ch. 12; Cooley, Const. Lim., ch. 11. 



RISE OF THE AMERICAN UNION. 7 

The Petition of Bight. 1 — By this petition it was prayed, 
among other things, " that no man be compelled to make 
or yield any gift, loan, benevolence, tax, or such like 
charge, without common consent by act of Parliament ; 
that none be called upon to make answer for refusal so to 
do ; that freemen be imprisoned or disseized only by the 
law of the land, or by due process of law, and not by the 
king's special command without any charge." In the next 
reign was enacted 

The Habeas Corpus Act, 2 the purpose of which was to 
give speedy relief from all unlawful imprisonments, and 
to enforce upon judicial and other officers the duty of 
deliverance. The fourth of the great charters of English 
constitutional liberty was 

The Bill of Bights, 3 which embodied in statutory form 
the principles enumerated in the Declaration of Rights 
presented by the Convention Parliament to the sovereigns 
called by that body to the throne on the Revolution of 
1688. The purpose of this act was to enumerate and 
reaffirm such rights of the people as the House of Stuart 
in any of its reigning representatives had set aside, en- 
croached upon, or ignored. 

The Common Law. — The charters above mentioned 
declared general principles, but the common law was the 
expositor of these, and the extent of the protection they 
should give could only be determined b} r its rules. That 
law was the growth of many centuries ; its maxims were 
those of a sturdy and independent race of men, who wore 
accustomed in an unusual degree to freedom of thought 
and action, and to a share in the administration of public 
affairs. 4 So far as they declared individual rights, they 
were a part of the constitution of the realm, ami oi' that 
" law of the land" the benefit of which was promised by 

i 3 Ch. I., ch. 1 (1628). - 81 Ch. II., eh, 2 (1679). 

s 1 Wm, & Mary, Ses. 2, ch. 2 (1689). 

4 Coolcy, Const. Lim., Cth ed., p. 33. Van Ness w, Pacard, 2 Pet 
137, 144. 



8 CONSTITUTIONAL LAW. 

the charter of King John to every freeman. They were 
modified and improved from age to age, by changes in 
the habits of thought and action among the people, b^r 
modifications in the civil and political state, by the 
vicissitudes of public affairs, by judicial decisions, and b} T 
statutes. 

The colonists claimed that this code of law accompanied 
them, as a standard of right and of protection in their emi- 
gration, and that it remained their law, excepting as in 
some particulars it was found unsuited to their circum- 
stances in the New World. Relying upon it, they had 
well known and well defined rules of protection ; without 
it, they were at the mercy of those who ruled, and, whether 
actually oppressed or not, were without freedom. 1 

Violations of Constitutional Right. — The complaints 
of violation of constitutional right were principally directed 
to four points : — 1. Imposing taxes without the consent 
of the people's representatives. 2. Keeping up standing 
armies in time of peace to overawe the people. 3. Deny- 
ing a right to trial 03^ a jury of the vicinage in some cases, 
and providing for a transportation of persons accused of 
crimes in America for trial in Great Britain. 4. Expos- 
ing the premises of the people to searches, and their per- 
sons, papers, and propert}^ to seizures on general warrants. 
If Americans were entitled to the constitutional rights of 
Englishmen, it was unquestionable that in these particu- 
lars their rights were invaded ; but the imperial govern- 
ment denied that the colonists could claim rights as against 
the exercise of its powers. 

Independence. — The sovereignty passed forever from the 
British Crown and Parliament when the war of the Revo- 
lution was actually begun, waged on the one side by the 
government of Great Britain to reduce the colonists to 
submission, and directed on the other side by a Continental 

1 " Not the man alone who feels, but who is exposed to tyranny, 
is without freedom." — Sir William Meredith, quoted in Life of Ire- 
dell, i. 212. 



RISE OF THE AMERICAN UNION. 9 

Congress which assumed the sovereign power of conduct- 
ing belligerent affairs. This great fact was not perceived, 
and indeed not assured, for more than a year, and it was 
then proclaimed to the world in the solemn document 
known as the Declaration of Independence, and which has 
already been mentioned. 

In pronouncing the dissolution of the political bonds 
with the mother country, the signers of this instrument 
declare that " we hold these truths to be self-evident, that 
all men are created equal ; that they are endowed 03- their 
Creator with certain unalienable rights ; that among these 
are life, liberty, and the pursuit of happiness ; that to 
secure these rights governments are instituted among men, 
deriving their just powers from the consent of the gov- 
erned ; that whenever any form of government becomes 
destructive of these ends, it is the right of the people 
to alter or to abolish it, and to institute a new govern- 
ment, laying its foundation on such principles, and organ- 
izing its powers in such form, as to them shall seem 
most likely to effect their safety and happiness." And 
proceeding to an enumeration of the grievances which 
justify their action, they close b} T declaring the dissolution 
of the ties that bind the Colonies to the British Crown, 
and asserting their independence in the terms already 
given. 1 

Revolutionary Government. — The government of the 
Union under the Continental Congress was strictly revolu- 
tionary in character, and was constituted by an acquies- 
cence of the people and the several States in the exercise 
by the Congress of certain undefined powers of general 
concern, the chief of which wore the power (o declare war, 
to conclude peace, to form alliances, and to contract debts 

1 Curtis, History of the Constitution, chap. 8. This author well 
says : " The body by which this stop was taken constituted the actual 
government of the nation at the time, and its members had been 
directly invested with competent legislative power to take it. and had 
also been specialty instructed so to do." (p". 51.) 



l'O' CONSTITUTIONAL LAW. 

on the credit of the Union. 1 The governments of the sev- 
eral States were also at first revolution aiy, but their pre- 
vious organization was such that the war disturbed them 
but little, and modified forms more than substance. All 
of them had local governments and the common law, which 
remained undisturbed ; all of them had legislative bodies, 
which continued to perform their functions, but without 
the recognition of the pre-existing executive authority. 
The States, however, soon proceeded to adopt formal con- 
stitutions, apportioning, defining, and limiting the powers 
of the several departments of government, and with two 
exceptions they had completed this work before indepen- 
dence was acknowledged by Great Britain. 2 The liberal 
charter granted to Rhode Island by Charles II. in 1663 
was found sufficient for the purposes of a free common- 
wealth, and was tacitly adopted as the constitution of the 
State, and remained such for two thirds of a centuiy. 3 
The charter of Connecticut was not superseded by a con- 
stitution until 1818. 

But a merely revolutionary government could not long 
answer the purposes of the Union. The powers of the Con- 
tinental Congress having never been formally conferred, 
or indeed agreed upon, by the States, that body was 
regarded by the people and by the State authorities as an 
advisory bodj T rather than as a government, and the pres- 
sure of external necessity determined the degree of obe- 
dience its commands or advice should receive. In most 
important matters they were often disregarded, and the 
Confederation seemed at the point of falling to pieces for 
the want of a legal bond of union and of legal power to 

1 Curtis, Hist, of Const., ch. 1, 2. 

2 See Mr. Bancroft's admirable chapter on " The Rise of Free 
Commonwealths," Hist, of U. S., vol. x. ch. 10; Centennial ed., vol. 
vi. ch. 46. 

3 Of the original States, Delaware, Maryland, New Hampshire, 
New Jersey. North Carolina, Pennsylvania, South Carolina, and Vir« 
ginia adopted constitutions in 1776, Georgia and New York in 1777, 
Massachusetts in 1780, and Rhode Island in 1842. 



RISE OF THE AMERICAN UNION. 11 

compel the performance of duties owing to it by its several 
members. 

Articles of Confederation. — This evil it was sought 
to remedy hy " Articles of Confederation and Perpetual 
Union," prepared b} r the Congress and submitted to the 
States in 1777, and ratified subsequently by representa- 
tives of the States empowered by their respective legis- 
latures so to do. 1 

These Articles declared that "Each State retains its 
sovereignty, freedom, and independence, and every power, 
jurisdiction, and right which is not by this Confederation 
expressly delegated to the United States in Congress as- 
sembled ; " that " The said States hereby severally enter 
into a firm league of friendship with each other, for their 
common defence, the security of their liberties, and their 
mutual and general welfare, binding themselves to assist 
each other against all force offered to, or attacks made 
upon them, or any of them, on account of religion, sov- 
ereignty, trade, or any other pretence whatever ; " and 
that, " for the more convenient management of the general 
interests of the United States," delegates from the several 
States shall meet in a Congress, in which each one shall 
have an equal vote. 

They further declared that " No State, without the con- 
sent of the United States in Congress assembled, shall 
send any embassy to, or receive any embassy from, or 
enter into any conference, agreement, alliance, or treaty 
with any king, prince, or state ;" that " No two or more 
States shall enter into an} T treaty, confederation, or alliance 
whatever between them without the consent of the United 

1 Curtis, Hist, of the Const., ch. 5. All the States except two 
ratified the Articles in 1778; Delaware delayed till the next year, 
and Maryland till 1781. The delay in the case of Maryland was for 
the purpose of obtaining a permanent and satisfactory settlement of 
the claims to Western lands. See Maryland's Influence upon Land 
Cessions to the United States, by 11. 1>. Adams, in Johns Hopkins 
Studies, etc., vol. iii. p. 1. 



12 constitutional law. 

States in Congress assembled ; " that " No State shall lay 
any imposts or duties which may interfere with any stipu- 
lations in treaties entered into bj* the United States in 
Congress assembled, with any king, prince, or state ; " 
that ' ' No State shall engage in an} T war without the con- 
sent of the United States, in Congress assembled, unless 
such State be actually invaded by enemies, or shall have 
received certain advice of a resolution being formed by 
some nation of Indians to invade such State, and the 
danger is so imminent as not to admit of a dela} T till the 
United States in Congress assembled can be consulted ; " 
and that except in such cases " the United States in Con- 
gress assembled shall have the exclusive right and power 
of determining on peace and war ; " also of sending and 
receiving ambassadors, entering into treaties and alli- 
ances, establishing rules and courts for the determination 
of cases of capture and prize, granting letters of marque 
and reprisal in time of peace, and appointing courts for 
the trial of piracies and felonies committed on the high 
seas. Also that the United States in Congress assembled 
shall be the last resort on appeal in all disputes and differ- 
ences between two or more States concerning boundar}^ 
jurisdiction, or any other cause whatever. 

The United States in Congress assembled were also 
empowered to borrow money, or emit bills on the credit 
of the United States, to build and equip a nav} T , to agree 
upon the number of land forces, and to make requisitions 
upon each State for its quota, in proportion to the number 
of white inhabitants of such State, but with the right to 
var}^ from this quota when the circumstances rendered it 
proper. 

The delegates in Congress were to be maintained b} T 
their States respectively; but it was declared that "All 
charges of war, and all other expenses that shall be. in- 
curred for the common defence or general welfare, and 
allowed by the United States in Congress assembled, shall 
be defrayed out of a common treasur}-, which shall be 



RISE OF THE AMERICAN UNION. 13 

supplied by the several States in proportion to the value 
of all land within each State, granted to or surveyed for 
an} r person, as such land and the buildings and improve- 
ments thereon shall be estimated, according to such mode 
as the United States in Congress assembled shall from 
time to time direct and appoint." The United States in 
Congress assembled were given the right and power of 
regulating the alloy and value of coin struck b} T their own 
authority or by that of the respective States, of fixing the 
standard of weights and measures, and of establishing and 
regulating post-offices and postage. 

It was further declared, that " The United States in 
Congress assembled shall never engage in a war, nor grant 
letters of marque and reprisal in time of peace, nor enter 
into any treaties or alliances, nor coin money, nor regu- 
late the value thereof, nor ascertain the sums and expenses 
necessary for the defence and welfare of the United States, 
or any of them, nor emit bills, nor borrow money on the 
credit of the United States, nor appropriate money, nor 
agree upon the number of vessels of war to be built or 
purchased, or the number of land or sea forces to be raised, 
nor appoint a commander-in-chief of the arm}' or navy, 
unless nine States assent to the same ; nor shall a ques- 
tion on any other point, except for adjourning from day to 
day, be determined, unless by the votes of a majority of 
the United States in Congress assembled." 

The Congress was empowered to appoint an executive 
committee, consisting of one from each State, to sit during 
the recess of Congress, who would be authorized " to exe- 
cute such of the powers of Congress as the United States 
in Congress assembled, by the consent of nine States, shall, 
from time to time, think expedient to vest them with." 
It was declared that the United States and the public faith 
were solemnly pledged for the public debts previously con- 
tracted by authority of Congress ; that the States should 
abide by all the determinations of the Congress on all 
questions by the Confederation submitted to that body; 



14 CONSTITUTIONAL LAW. 

and that " The Articles of this Confederation shall be in- 
violably observed by every State, and the Union shall be 
perpetual ; nor shall an} 7 alteration at an}' time hereafter 
be made in any of them, unless such alteration be agreed 
to in a Congress of the United States, and be afterwards 
confirmed by the legislatures of every State." 

Failure of the Confederation. — The defects in the 
Confederation were such as rendered speedy failure inevi- 
table. It accomplished a temporary purpose in a very im- 
perfect manner, but it was impossible that it should do 
more. The Confederation was given authority to make 
laws on some subjects, but it had no power to compel 
obedience ; it might enter into treaties and alliances which 
the States and the people could disregard with impunity ; 
it might apportion pecuniary and military obligations 
among the States in strict accordance with the provisions 
of the Articles ; but the recognition of the obligations 
must depend upon the voluntary action of thirteen States, 
all more or less jealous of each other, and all likely to 
recognize the pressure of home debts and home burdens 
sooner than the obligations of the broader patriotism in- 
volved in fidelity to the Union ; it might contract debts, 
but it could not provide the means for satisfying them ; in 
short, it had no power to levy taxes, or to regulate trade 
and commerce, or to compel uniformity in the regulations 
of the States; the judgments rendered in pursuance of its 
limited judicial authority were not respected by the States ; 
it had no courts to take notice of infractions of its author- 
ity, and it had no executive. A further specification of 
defects is needless, for any one of those mentioned would 
have been fatal. 4i Obedience is what makes government, 
and not the names by which it is called ; " * and the Con- 
federation had neither obedience at home nor credit or 
respect abroad. The people was one in promising and 
thirteen when performance was due, and it became at last 
difficult to enlist sufficient interest in its proceedings to 
1 Burke" Speech on Conciliation with America. 



&1SE OF THE AMERICAN TOIOH. 15 

keep up the forms of government through the meetings of 
Congress and of the executive committee. 1 

The Constitutional Convention. — In Februaiy, 1787, a 
resolution was adopted by the Congress recommending a 
convention in Philadelphia, in the May following, of dele- 
gates from the various States, "for the purpose of revising 
the Articles of Confederation, and reporting to Congress 
and the several legislatures such alterations and provisions 
therein as shall, when agreed to ill Congress and confirmed 
by the States, under the Federal Constitution be adequate 
to the exigencies of government and the preservation of 
the Union." This was in strict conformity with the pro- 
vision for amendment contained in the Articles, and was 
acted upon by all the States except Rhode Island, which 
alone sent no delegates. The Convention when it met, 
after full consideration, determined that alterations in and 
amendments to the Articles would be inadequate to the 
purposes of government, and proceeded to recommend a 
new Constitution, and to provide that " The ratification of 
the conventions of nine States shall be sufficient for the 
establishment of this Constitution between the States so 
ratifying the same." As this was in disregard of the pro- 
vision in the Articles of Confederation, which required the 
assent of every State, it was a revolutionary proceeding,'- 
and could be justified only by the circumstances which 
had brought the Union to the brink of dissolution. 

Its revolutionary character appears more distinctly from 
the action under it, since eleven States only had ratified 
the Constitution when the government was organized in 

1 The reasons for the failure have been dwelt upon at length by 
many writers, particularly Story on Const., eh. 4; Pitkin, Hist, of 
U. S., eh. 17; Curtis, Hist, of the Const, book 2; Yon Hoist. (Vim. 
Hist., eh. l ; Fiske, The Critical Period of American History ; Schoul- 
er, Hist, of U. S., vol. i. ch. 1; and Madison, Hamilton, and, lay. in the 
Federalist. 

2 Van Buren, Political Parties, p. 50; Federalist, No. 43, by Madi- 
son; Burgess, Political Science and Comparative Constitutional Paw, 
VoL i. pp. 101-108. 



16 CONSTITUTIONAL LAW. 

pursuance of its provisions, 1 and the remaining two, North 
Carolina and Rhode Island, were for a time excluded from 
the Union. Both gave their assent, however, and became 
members of the Union, the first in November, 1789, and 
the other in May, 1790. 

Sovereignty of the States. — The term sovereignty in 
its full sense imports the supreme, absolute, and uncon- 
trollable power by which any independent state is gov- 
erned. 2 From what has already been said it appears that, 
although the States were called sovereign and independent 
in the Declaration of Independence, the\ T were never in 
their individual character strictly so, because they were 
always, in respect to some of the higher powers of sover- 
eignt}', subject to the control of some common authority, 
and were never separately recognized or known as mem- 
bers of the family of nations. This common authority 
was, first, the Crown and Parliament of Great Britain ; 
second, the Revolutionary Congress ; third, the Congress 
of the Confederation ; and at length the government 
formed under the Constitution. The powers of these dif- 
fered greatly, but in one most important particular there 
was uniformity : each had control of affairs of war for all 
the Colonies or States, and of all intercourse with foreign 
nations.. Ox\\y North Carolina and Rhode Island are to 
be considered exceptions to this general statement : these 
for the little time while the\ T were excluded from the Union 
by their neglect to ratify the Constitution were relieved 
from all common authority, and became wholly inde- 
pendent. It is to be said of them, however, that they 
remained in that condition for a period so brief that as 

1 Marcli 4, 1789, was the time fixed for the organization of the 
government, but it was not in fact inaugurated until the 30th of the 
following month. 

2 Burlamaqui, Politic. Law, ch. 5 ; 1 Bl. Com., 49 ; Story on ConsV 
§ 207; Wheat. Int. Law, pt. 1, ch. 2, § 5; Austin, Prov. of JuriB., 
ch. 6 ; Chipraan on Gov., 137. 



RISE OF THE AMERICAN UNION. 17 

sovereignties they neither obtained nor sought for recog- 
nition by foreign nations. 1 

Bill of Hights. — The several charters of English liberty 
to which reference has already been made had been much 
relied upon by the American people in the controversies 
resulting in independence, and their clear assertion of 
individual rights was of inestimable value in inspiring the 
people to resist tyrannical action of the government. 
Each of these charters had been more specific and enlarged 
in its provisions than that which preceded, and it might 
have been expected that the Convention of 1787 would 
have followed the examples, and that in their completed 
work would have been found a clear and full enumeration 
of those rights which were deemed indefeasible, and which 
might lawfully be asserted against the government itself. 
The importance of this, however, did not impress itself on 
the minds of the members of that body. 8 The Constitu- 
tion did indeed insure the benefits of the habeas corpus ; 
it precluded constructive treasons ; it prohibited bills of 
attainder and ex post facto laws ; and it provided for the 
trial of criminal accusations b} T jury ; but there was no 
attempt at a S3 T stematic enumeration of fundamental rights, 
and the absence of this was made a ground of persistent 
opposition to the ratification of the Constitution. Some 
of the leading States, indeed, were only induced to ratify in 
reliance upon a bill of rights being added to the Constitu- 
tion by amendments, 3 and this was done in eight articles, 
which were proposed and adopted as speedily as the neces- 

1 Life and Writings of A. J. Dallas, 200-207 ; Von Hoist, Const. 
Hist., ch. 1; Chisholm v. Georgia, 2 Dall. 419, 470, per Jay, Ch. J. ; 
Texas v. White, 7 Wall. 700, 724. 

2 For reasons that might he urged against it, see Federalist, No. 
84; eompare Jefferson's Works, vol. iii. pp. 4, 18, 101, vol. ii pp. 329; 
358; Life of Madison, by Hives, vol. ii. p. 88 et seq. : Hamilton's Hist, 
of the Republic, vol. iv. p. 23. 

3 See the recommendations by Massachusetts, South Carolina, 
New Hampshire, Virginia, Now York, North Carolina, and Khode 
Island, in Elliott's Debates, i. 822-884, 

2 



18 CONSTITUTIONAL LAW. 

sary forms could be gone through with. For a propel 
understanding of these provisions it is essential to keep 
in mind that their purpose, as well as that of similar pro- 
visions in the original instrument, was to put it out of the 
power of the government now being created to violate the 
fundamental rights of the people who were to be subjected 
to its authority. ( They constitute limitations, therefore, 
upon the power of the Federal government only. The 
exceptions to this general statement are only of those few 
cases in which the States are named, and the exercise 
of certain powers by them expressly prohibited. For 
example, when the Constitution, in Art. I. § 9, declares 
that ' ' no bill of attainder or ex post facto law shall be 
passed," it is still necessary, in order to extend the pro- 
hibition to the States, to provide, as is done in the next 
section, that "no State" shall pass such a bill or law. 
To state the rule of construction concisely, it is this. The 
restrictions imposed upon government by the Constitution 
and its amendments are to be understood as restrictions 
only upon the government of the Union, except where the 
States are expressly mentioned. 1 

This rule of construction is a very important and fun- 
damental one, and should be kept in mind in the study of 
the succeeding pages. In the course of the book many 
of the restrictions upon governmental action mentioned in 
the Constitution are discussed as general principles affect- 
ing the relations of the citizens of the State to their State 
government, as well as the relations of the citizens of 
the United States to the Federal government. But this 

1 Barron v. Baltimore, 7 Pet. 243 ; Smith v. Maryland, 18 How. 71 ; 
Pervear v. Commonwealth, 5 Wall. 475 ; Twitchell v. Commonwealth, 
7 Wall. 321 ; Justices v. Murray, 9 Wall. 274; Edwards v. Elliott, 21 
Wall. 532; Walker v. Sauvinet, 92 U. S. 90; Presser v. Illinois, 116 
U. S. 252 ; Spies v. Illinois, 123 U. S. 131. The Bill of Rights is in* 
terpreted in the light of the law as it existed at the time of its adoption. 
" Many of the provisions of the Bill of Rights are subject to exceptions, 
recognized long before the adoption of the Constitution and not inter* 
fering at all with its spirit/' Mattox v. United States, 156 U. S. 237. 



RISE OF THE AMERICAN UNION. 19 

method of treatment is used, not because restrictions or 
prohibitions in favor of individual liberty mentioned in 
the Federal Constitution are limitations upon the power 
of the States when the States are not expressly mentioned, 
but because like restrictions and prohibitions are contained 
in State Constitutions directly limiting the action of State 
governments. Although the courts of the one govern- 
ment when interpreting its Constitution are not bound by 
the decisions of the courts of another government inter- 
preting similar provisions in its Constitution, as a matter 
of fact a series of constitutional principles has come into 
being which are recognized by both Federal and State 
courts in the interpretation of constitutional provisions. 1 

1 See, for example, post, Ch. XIV. Sec. V., where freedom of speech 
and of the press are considered. 



20 CONSTITUTIONAL LAW. 



CHAPTER II. 
DEFINITIONS AND GENERAL PRINCIPLES. 

Nation and State. — A State may be defined to be a 
body politic or society of men united together under 
common laws for the purpose of promoting their mutual 
safet} T and advantage by the joint efforts of their com- 
bined strength. 1 The term is often employed as import- 
ing the same thing with nation ; but the latter is more 
nearly synonj'inous with people, and while a single state 
may embrace several different nations or peoples, a sin- 
gle nation will sometimes be so divided politically as to 
constitute several states. 

In the following pages the word State will sometimes 
be empkyed in the general sense above expressed, but 
more commonly it will refer to the several members of 
the American Union, while the word Nation will be applied 
to the whole body of the people coming under the juris- 
diction of the federal government. 

A State is either sovereign or dependent. It is sover- 
eign when there resides within itself a supreme and 
absolute power, acknowledging no superior, and it is de- 
pendent when in any degree or particular its authority 
is limited by an acknowledged power elsewhere. 2 It is 
immaterial to this definition whether the supreme power 
reposes in one individual, or one body or class of individ- 

1 Vattel, b. 1, ch. 1, § 1 ; Wheat. Int. Law, pt. 1, ch. 2, § 2 ; Story 
on Const., § 207 ; Burlamaqui, Pol. Law, ch. 5 ; Cooley, Const. Lim., 1. 

2 Vattel, b. 1, ch. 1, § 2; Chipman on Government, 137; Halleck, 
Int. Law, 65. 



DEFINITIONS AND GENERAL PRINCIPLES. 21 

uals, or in the whole body of the people ; whether, in 
other words, the government is a monarchy, an aristoc- 
racy, a republic, or a democracy, or any combination of 
these ; for the form only determines the methods in which 
sovereign powers shall be exercised. 

All civilized, states recognize a body of rules or laws 
which is called the Law of Nations, and the rules are 
either rules of pub lic international law, as they relate to 
and regulate the intercourse of states with each other, or 
of private international law, as they define and protect the 
rights, privileges, and obligations of the citizens or sub- 
jects of one state passing into another, or owning prop- 
ert} r , making contracts, or conducting operations that ma}' 
be governed b} T the laws of another. In contemplation of 
the law of nations, all sovereign states are and must be 
equal in rights, since from the very definition of sovereign 
state it is impossible that there should be in respect to it 
any political superior. 

In theory sovereignty must be a unit} r , and the sov- 
ereignty of a state must extend to all the subjects of 
government within the territorial limits occupied b} r the 
associated people who compose it, so that the dividing 
line between sovereignties must be a territorial line. In 
the law of nations for the purposes of international inter- 
course some encroachment upon the theory is admitted, and 
the sovereignty of one state is projected within the juris- 
diction of another, so as to retain within its rule its am- 
bassadors and ministers resident abroad, and its ships of 
war in foreign ports. In American constitutional law a 
peculiar system is established ; the powers of sovereignty 
being classified, and some of them apportioned to the gov- 
ernment of the United States for its exercise, while others 
are left with the States. Under this apportionment the 
nation is possessed of supreme, absolute, and uncontrol- 
lable power in respect to certain subjects throughout all 
the States, while the States have the Like unqualified 
power, within their respective limits, in respect to other 



22 CONSTITUTIONAL LAW. 

subjects. 1 Over certain other subjects the States have a 
qualified dependent or defeasible power, inasmuch as their 
action is liable at any time to be overruled, and their 
powers to become dormant, by the exercise of a superior 
power which is conferred upon the nation over the same 
subjects. 2 

Constitution. — The term constitution may be defined 
as the body of rules and maxims in accordance with which 
the powers of sovereignty are habitually exercised. 3 / A 
constitution is valuable in proportion as it is suited to the 
circumstances, desires, and aspirations of the people, and 
as it contains within itself the elements of stabilitj-, per- 
manence, and security against disorder and revolution. 
Although every state may be said in some sense to have 
a constitution, the term constitutional government is only 
applied to those whose fundamental rules or maxims not 
only define how those shall be chosen or designated to 
whom the exercise of sovereign powers shall be confided, 
but also impose efficient restraints on the exercise for the 
purpose of protecting individual rights and privileges, and 
shielding them against any assumption of arbitrary power. 4 
The number of such governments is not as 3^et great, but 
is increasing. 

A constitution may be written or unwritten. If unwrit- 
ten, there may still be laws or authoritative documents 
which declare some of its important principles ; as we 
have seen has been and is still the case in England. The 
weakness of an unwritten constitution consists in this, 
that it is subject to perpetual change at the will of the 

1 License Cases, 5 How. 504, 588 ; Ableman v. Booth, 21 How. 506, 
516 ; United States v. Cruikshanks, 92 U. S 542 ; Barbier v. Connolly, 
113 U. S. 27; Mugler v. Kansas, 123 U. S. 623; Kidd v. Pearson, 128 
U. S. 1. 

2 Cooley v. Wardens, &c, 12 How. 299 ; Mobile v. Kimball, 102 
U. S. 691 ; Willamette Bridge Co. v. Hatcb, 125 U. S. 1 ; Morgan's 
S. S. Co. v. Louisiana, 118 U. S. 455; Smithy. Alabama, 124 U.S. 465. 

3 Duer, Const Juris., 26; Cooley, Const. Lim.,2. 

4 Calhoun, Disquisition on Government, Works, i. 11. 



DEFINITIONS AND GENERAL PRINCIPLES. 23 

law-making power ; and there can be no security against 
such change except in the conservatism of the law-making 
authority, and its political responsibility to the people, or, 
if no such responsibility exists, then in the fear of resist- 
ance by force. \In America the leading principle of consti- 
tutional liberty has from the first been, that the sovereignty 
reposed in the people ; and as the people could not in their 
collective capacity exercise the powers of government, a 
written constitution was by general consent agreed upon 
in each of the States. These constitutions create depart- 
ments for the exercise of sovereign powers ; prescribe the 
extent of the exercise, and the methods, and in some par- 
ticulars forbid that certain powers which would be within 
the compass of sovereignt\ T shall be exercised at all. Each 
of these constitutes for the State the absolute rule of action 
and decision for all departments and offices of the gov- 
ernment, in respect to all the points covered b} r it, which 
must control until it shall be changed by the authority 
which established it. Whatever act or regulation of any 
department or officer is in excess of the power conferred 
by this instrument, or is opposed to any of its directions 
or regulations, is altogether void. The constitution, more- 
over, is in the nature of a covenant of the sovereign people 
with each individual thereof, under which, while they in- 
trust the powers of government to political agencies, they 
also divest themselves of the sovereign power of making 
changes in the fundamental law except by the method in 
the constitution agreed upon. The Constitution of the 
United States creates similar governmental trusts and im- 
poses similar restrictions, j The weaknesses of a written 
constitution are, that it establishes iron rules, which, when 
found inconvenient, are difficult of change ; that it is often 
construed on technical principles of verbal criticism, rather 
than in the light of great principles ; and that it is likely 
to invade the domain of ordinary legislation, instead of 
being restricted to fundamental rules, ami thereby to in- 
vite demoralizing evasions. But, the written constitution 



24 CONSTITUTIONAL LAW. 

being a necessit}^ in America, the attendant evils are in- 
significant as compared with the inestimable benefits. 

In the following pages, where the Constitution is spoken 
of, the Constitution of the United States will be intended 
unless otherwise explained. 

Unconstitutional Law. — A law is sometimes said to 
be unconstitutional, by which is meant that it is opposed 
to the principles or rules of the constitution of the state. 
An unconstitutional enactment is sometimes void, and 
sometimes not ; and this will depend upon whether, accord- 
ing to the theory of the government, an} T tribunal or officer 
is, empowered to judge of violations of the constitution, 
and to keep the legislature within the limits of a delegated 
authority b} T annulling whatever acts exceed it. Accord- 
ing to the theory of British constitutional law the Parlia- 
ment possesses and wields supreme power, 1 and if therefore 
its enactments conflict with the Constitution, they are 
nevertheless valid, and must operate as modifications or 
amendments of it. But where, as in America, the legisla- 
ture acts under a delegated authority, limited by the Con- 
stitution itself, and the judiciary is empowered to declare 
what the law is, an unconstitutional enactment must fall 
when it is subjected to the ordeal of the courts. Such an 
enactment is in strictness no law, because it establishes 
no rule : it is merely a futile attempt to establish a law. 
The remedy for unconstitutional enactments in England 
must therefore be political or revolutionary, while j_n 
America they may be foun d in the ordinary process of the 
c ourts . Still everfm America some cases must be beyond 
the reach of judicial cognizance, because the questions 
involved are purely political. Such, for example, were 
questions involved in the reconstruction of the States 
recently in rebellion, and the question growing out of the 

1 1 Bl. Com., 161 ; Broom, Const. Law, 795 ; De Tocqueville, De- 
mocracy in America, ch. 6 ; Dicey, The Law of the Constitution. 
pt. 1, ch. 1. 



DEFINITIONS AND GENERAL PRINCIPLES. 25 

attempt to overthrow the charter government of Rhode 
Island. 1 

The Right of Revolution. — The authority of the 
British Crown over the Colonies was rejected, and a gov- 
ernment created by the people of the Colonies for them- 
selves, and this afterwards radically changed and reformed 
in the adoption of the Federal Constitution under the great 
and fundamental right of every people to change their 
institutions at will, — in other words, under the right of 
revolution. It is true that the colonists in the incipient 
period of the change planted themselves upon established 
rights, instead of seeking or desiring a revolution. Their 
purpose, therefore, was to maintain old established princi- 
ples of the Constitution, instead of overturning them ; and 
they occupied a conservative position, resisting innovations 
which the imperial government was attempting to force. 
Nevertheless there was no settled principle of the consti- 
tution that limited in any manner the sovereign right of 
Parliament to change at will the laws protecting the life, 
liberty, and property of the subject ; and had the same 
laws which in this particular oppressed the people of the 
Colonies been applied to the people of the realm, they 
would have been within the acknowledged power of the 
Parliament. So in regard to the Colonies the right of 
the imperial government to rule in all respects might be 
defended on precedent, and the leading publicists of the 
day affirmed it. It was nevertheless the fact that the ex- 
ercise of imperial power in the particulars complained of 
was tyrannical and in disregard of constitutional princi- 
ples, and that resistance was directly in the line of English 
precedents which at the time were almost universally ap- 
proved in England itself. There was consequently am- 
ple ground for resistance, and if the other conditions for 
revolution existed, the colonists were right in attempt- 
ing it. 

The right of revolution may be said to exist when the 
1 Luther v. Borden, 7 How. 1 ; Mississippi v. Johnson, 4 "Wall. 476. 



26 CONSTITUTIONAL LAW. 

government has become so oppressive that its evils de- 
cidedly overbalance those which are likely to attend a 
change, when success in the attempt is reasonably certain, 
and when such institutions are likely to result as will be 
satisfactory to the people. 1 In this last particular the prob- 
abilit}' of success will depend largely on the extent of the 
revolution attempted, — whether it extends to the laws 
in general, or only to the head of the government. In 
America only a change in the general sovereignty was in- 
tended ; in respect to the general laws, the revolution was 
strictly preservative. It became necessar} T , nevertheless, 
to make considerable changes in state laws and institu- 
tions before the revolution was perfected, and when these 
were completed in the adoption of the Federal Constitu- 
tion, the revolution was full}' justified in the establish- 
ment of more satisfactoiy institutions than had existed 
before. 

The Constitution : by whom adopted. — To a proper 
understanding and construction of the Constitution it be- 
comes important to know at the outset who were the 
parties to it, — b} r whom it was adopted, and what it was 
meant to accomplish. In these particulars the present 
work cannot enter into the field of speculation or discus- 
sion, nor would it be important to do so. The general 
principles governing the case have been judiciall}' deter- 
mined, and the political departments of the government 
have accepted the conclusions. It therefore becomes suffi- 
cient for our purposes to sa} T here, that the Constitution 
was agreed upon by delegates representing the States in 
convention ; that it was submitted to the people of the 
several States by their respective legislatures ; that it was 
adopted \>y the people through delegates elected for the 
express purpose of considering and deciding upon it, and 
that the people of the States, as well as the States them- 
selves, thereby became parties to it. It was therefore 
properly declared in the preamble, that "We, the people 
1 Woolsey, Pol. Science, i. 402. 



DEFINITIONS AND GENERAL PRINCIPLES. 27 

of the United States, do ordain and establish this Consti- 
tution for the United States of America." * By the adop- 
tion of the Constitution the people of the States before 
united in a confederation became a nation under one gov- 
ernment, 2 and the citizens of every State became also 
citizens of the United States. 3 The purpose of the Con- 
stitution is forcibty and clearly declared in the preamble. 
It was "in order to form a more perfect union, establish 
justice, insure domestic tranquillity, provide for the com- 
mon defence, promote the general welfare, and secure the 
blessings of liberty to ourselves and our posterity." These 
purposes collective^, it has been well said, " comprise 
everything requisite, with the blessing of Divine Provi- 
dence, to render a people prosperous and happy." 4 By 
the new amendments to the Constitution the freedmen 
become a part of the people, and all the purposes for which 
it was made and established are to be deemed to have 
them in view, and to contemplate their protection and 
benefit as a part of the body politic. 

Not a mere Compact. — The confederation of the States 
had existed by force of a mere compact, and for want of 
power in the common authority had so complete^ failed 
in the purposes of its formation as to justify its being 
superseded by revolutionary, though peaceful, means. 
Among its chief defects was the fact that it operated on 
States only, and that the highest sanction it could give to 
its lawful determinations was that of advice, or entreaty ; 
it could not command, and it could not enforce. The Con- 
stitution which was adopted to supersede it, on the other 
hand, is an instrument of government, agreed upon and 
established, and rendered cilicient as such b}' being made 

1 Martin v. Hunter, 1 Wheat. 304, 324; Cohens v. Virginia, G 
Wheat. 264, 413. 

' 2 Lane County v. Oregon, 7 Wall. 71, 7G. 

8 Minor v. Happersett, 21 Wall. 162 ; United States v. Gruikshanka, 
92 U. S. 542. 

« Chisholm v. Georgia, 2 DalL 419. 



28 CONSTITUTIONAL LAW. 

operative upon the people individually and collectively, 
and, within the sphere of its powers, upon the States also. 1 
This was the judicial view of the Constitution from the 
firsthand it has been practically and finall}^ settled against 
opposing theories, by the action of the several departments 
of the government, extending over the whole period of the 
existence of the Union under the Constitution ; by the 
acquiescence of the people in this view, and their forcible 
resistance to the attempt made to supersede it ; and, 
finally, by the adoption of the thirteenth, fourteenth, and 
fifteenth articles of the amendments to further strengthen 
and consolidate the Union under the government of the 
Constitution. 3 

The Union Indissoluble. — By the Articles of Confed- 
eration " the Union was declared to be ' perpetual.' And 
when these Articles were found to be inadequate to the 
exigencies of the country, the Constitution was ordained 
1 to form a more perfect Union.' It is difficult to convey 
the idea of indissoluble unity more clearly than b} 7 these 
words. What can be indissoluble, if a perpetual union 
made more perfect is not ? " 4 When a State is once in 
the Union, there is "no place for reconsideration or revo- 

1 Webster, " The Constitution not a Compact," Speeches, iii. 349 ; 
Jackson's Proclamation on Nullification in 1833, Elliott's Debates, iv. 
610, Statesman's Manual, i. 890. 

2 Martin v. Hunter, 1 Wheat. 304, 324 ; M'Culloch v. Maryland, 
4 Wheat. 316, 402 ; Gibbons v. Ogden, 9 Wheat. 1, 187 ; Rhode Island 
y. Massachusetts, 12 Pet. 657, 720; Texas v. White, 7 Wall. 700, 726. 

3 Views either radically or in part opposed to those which have 
prevailed are presented in Calhoun's Discourse on the Constitution 
and Government of the United States, Works, i. 11 ; and Address on 
the Relations of the State to the General Government, Works, vi. 59 ; 
Upshur on the Federal Constitution ; Construction Construed and 
Constitution Vindicated, by John Taylor ; New Views of the Consti- 
tution of the United States, by the same ; The Constitutional View 
of the War between the States, by A. H. Stephens ; The Kentucky 
and Virginia Resolutions of 1798-9, Elliott's Debates, iv. 566, 67^ 
and other publications too numerous for mention here. 

* Texas v. White, 7 Wall- TOO, 726. 



DEFINITIONS AND GENERAL PRINCIPLES. 29 

cation, except through revolution, or through the consent 
of the States." x 

The States Indestructible. — " But the perpetuity and 
indissolubility of the Union by no means implies the loss 
of distinct and individual existence, or of the right of 
self-government by the States. Without the States in 
union there could be no such political body as the United 
States. 3 Not only, therefore, can there be no loss of 
separate and independent autonomy to the States, through 
their union under the Constitution, but it may not unrea- 
sonably be said that the preservation of the States and 
the maintenance of their governments are as much wthin 
the design and care of the Constitution as the preservation 
of the Union and the maintenance of the national gov- 
ernment. The Constitution in all its provisions looks 
to an indestructible Union composed of indestructible 
States." 3 

The Constitution a Grant of Powers. — ( The govern- 
ment created b}' the Constitution is one of limited and 
enumerated powers, and the Constitution is the measure 
and the test of the powers conferred. Whatever is not 
conferred is withheld, and belongs to the several States 
or to the people thereof. 4 As a constitutional principle 
this must result from a consideration of the circumstances 
under which the Constitution was formed. The States 
were in existence before, and possessed and exercised 
nearly all the powers of sovereignt}'. The Union was in 
existence, but the Congress which represented it pos- 
sessed a few powers onty, conceded to it by the States, 
and these circumscribed and hampered in a manner to 

1 Texas v. White, 7 Wall. 700, 726. 

2 Lane County v. Oregon, 7 Wall. 71, 70. 
8 Texas v. White. 7 Wall. 700, 725. 

4 Calder v. Bull, 3 Dall. 380; Gibbons v. Ogden, 9 Wheat. 1, 187 
Briscoe v. Bank of Kentucky, 11 Pet. 267 ; Oilman v. Philadelphia, 8 
Wall. 713 ; Slaughter House Cases, 1(3 Wall. 30 ; United States i 
Cruikshanks, 92 U. S. 642, 650. 



30 CONSTITUTIONAL LAW, 

render them of little value. The States were thus reposi- 
tories of sovereign powers, and wielded them as being 
theirs of inherent right ; the Union possessed but few 
powers, enumerated, limited, and hampered, and these 
belonged to it by compact and concession. In a confed- 
eration thus organized, if a power could be in dispute be- 
tween the States and the Confederac}', the presumption 
must favor the States. > But it was not within the intent 
of those who formed the Constitution to revolutionize the 
States, to overturn the presumptions that supported their 
authorit}*, or to create a new government with uncertain 
and undefined powers. The purpose, on the contraiy, 
was to perpetuate the States in their integrity, and to 
strengthen the Union in order that they might be perpet- 
uated. To this end the grant of powers to the Confed- 
eracy needed to be enlarged and extended, the machinery 
of government to be added to and perfected, the people 
to be made parties to the charter of government, and the 
sanction of law and judicial authority to be given to the 
legitimate acts of the government in any and all of its 
departments. But when this had been done, it remained 
true that the Union possessed the powers conferred upon 
it, and that these were to be found enumerated in the 
instrument of government under which it was formed. 
But lest there might be any possible question of this in 
the minds of those wielding any portion of this authorhy, 
it was declared by the tenth article of the amendments that 
C" The powers not delegated to the United States by the 
Constitution, nor prohibited b}^ it to the States, are 
reserved to the States respectively or to the people." 1 J 
From what has just been said, it is manifest that there 
must be a difference in the presumption that attends an 
exercise of national and one of State powers. The differ- 

1 The corresponding article in the Confederation was : " Each State 
retains its sovereignty, freedom, and independence, and every power, 
jurisdiction, and right, which is not by this Confederation expressly 
delegated to the United States in Congress assembled." — Art. II. 



DEFINITIONS AND GENERAL PKINCIPLES. 31 

ence is this. To ascertain whether any power assumed by 
the government of the United States is rightfully assumed, 
the Constitution is to be examined in order to see whether 
expressly or b}" fair implication the power has been granted, 
and if the grant does not appear, the assumption must be 
held unwarranted. To ascertain whether a State right- 
fully exercises a power, we have only to see whether by 
the Constitution of the United States it is conceded to the 
Union, or by that Constitution or that of the State pro- 
hibited to be exercised at all. The presumption must be 
that the State rightfully does what it assumes to do, until 
it is made to appear how, hy constitutional concessions, it 
has divested itself of the power, or by its own Constitution 
has for the time rendered the exercise unwarrantable. 1 

It is Supreme. — By Article VI. it is declared that 
" This Constitution, and the laws of the United States 
which shall be made in pursuance thereof, and all treaties 
made, or which shall be made, under the authority- of 
the United States, shall be the supreme law of the land ; 
and the judges, in every State, shall be bound thereby, 
anything in the Constitution and laws of smy State to 
the contrary notwithstanding." 2 Upon this it is to be 
observed : — 

1. The Congress of the United States derives its power 
to legislate from the Constitution, which is the measure of 
its authority ; and any enactment of Congress which is 
opposed to its provisions, or is not within the grant of 
powers made by it, is unconstitutional, and therefore no 
law, and obligatory upon no one. 3 

{_ 2. As between a law of the United States made in pur- 
suance of the Constitution and a treaty made under the 

1 Calder v. Bull, 3 Dall. 386; Golden r. Prince, 8 Wash. C. 0. 81S; 
Slaughter House Cases, 16 Wall. 36; United States r. Cruikshanks, 
92 U. S. 542. 

a Const. U. S., Art. VI. § 2. 

8 Ableman v. Booth, 21 How. 606, 520; United States v. Cnrik- 
Shanks, 92 U. S 512; United States r. Harris, 106 U. S. 629; Civi» 
Rights Cases, 109 U. S. 3. 



32 CONSTITUTIONAL LAW. 

authority of the United States, if the two in any of their 
provisions are found to conflict, the one last in point of 
time must control. 1 For the one as well as the other is an 
act of sovereignty, differing only in form and in the organ 
or agency through which the sovereign will is declared. 
Each alike is the law of the land in its adoption, and the 
last law must repeal everything that is of no higher author- 
ity which is found to come in conflict with it. A treaty 
may therefore supersede a prior act of Congress ; 2 and, on 
the other hand, an act of Congress may supersede a prior 
treaty. 8 

3. A State law must yield to the supreme law, whether 
expressed in the Constitution of the United States or in 
any of its laws or treaties, so far as they come in col- 
lision, 4 and whether it be a law in existence when the 
" supreme law" was adopted, or enacted afterwards. 5 
The same is true of any provision in the constitution of 
any State which is found to be repugnant to the Constitu- 

1 Foster v. Neilson, 2 Pet. 253, 314; Doe v. Braden, 16 How. 635. 

2 Foster v. Neilson, 2 Pet. 253. 

8 The Cherokee Tobacco, 11 Wall. 616; Head Money Cases, 112 
U. S. 580 ; Chinese Exclusion Case, 130 U. S. 581 ; Taylor v. Morton, 
2 Curt. C. C. 454. For a statement of the result of the Acts of Con- 
gress contravening the Chinese treaties, see Wan Shing v. United 
States, 140 U. S. 424; Fong Yue Ting v. United States, 149 U. S. 698; 
Wong Wing v. United States, 163 U. S. 228. 

4 " The United States is a government with authority extending 
over the whole territory of the Union, acting upon the States and the 
people of the States. While it is limited in the number of its powers, 
so far as its sovereignty extends it is supreme. No State government 
can exclude it from the exercise of any authority conferred upon it 
by the Constitution, obstruct its authorized officers against its will, or 
withhold from it for a moment the cognizance of any subject which 
that instrument has committed to it." Tennessee v. Davis, 100 U. S. 
257, per Strong, J. See also In re Debs, Petitioner, 158 U. S. 564; 
Logan v. United States, 144 U. S. 263. 

5 Ware v. Hylton, 3 Dall. 199 ; Hauenstein v. Lynham, 100 U. S. 
483 ; Parrott's Chinese Case, 6 Sawy. 349. In these cases a treaty 
was held of superior authority to an existing State statute, to a sub- 
sequent State statute, and to a subsequent State constitution, re- 
spectively. 



DEFINITIONS AND GENERAL PRINCIPLES. 33 

tion of the Union. 1 And not only must " the judges in 
every State " be bound by such supreme law, but so must 
the State itself, and every official in all its departments, 
and every citizen. 

v 4. The Constitution itself never yields to treaty or en- 
actment ; it neither changes with time, nor does it in 
theory bend to the force of circumstances. It may be 
amended according to its own permission ;' but while it 
stands it is " a law for rulers and people, equally in war 
and in peace, and covers with the shield of its protection 
all classes of men, at all times and under all circum- 
stances." Its principles cannot, therefore, be set aside 

in order to meet the supposed necessities of great crises. 
4 'No doctrine involving more pernicious consequences 
was ever invented by the wit of man, than that any of its 
provisions can be suspended during any of the great 
exigencies of government. Such a doctrine leads directly 
to anarchy or despotism, but the theory of necessity on 
which it is based is false ; for the government within the 
Constitution has all the powers granted to it which are 
necessary to preserve its existence, as has been happily 
proved by the result of the great effort to throw off its 
just authority." 2 

State Bights. — This phrase is common in political dis- 
cussions, and especially in those which relate to the powers 
of the Federal government, and its proper sphere of action 
under the Constitution. The meaning is likely to differ 
as do the constitutional views of those who make use of 

1 Dodge v. Wolsey, 18 How. 331 ; Jeffersou Branch Bank v. Skelly, 
1 Black, 436; Cummings v. Missouri, 4 Wall. 277; Railroad Co. v. 
McClure, 10 Wall. 511 ; White v. Hart, 13 Wall. 646; Gunn v. Barry, 
15 Wall. 610 ; Pacific Railroad Co. v. Maguire, 20 Wall. 36 ; St. Louis, 
&c. Ry. Co. v. Vickers, 122 U. S. 360. A State cannot control the con- 
duct of an agency of the Federal government within its limits, if the 
result would ho a conflict with national law or an impairment of the 
efficiency of the agency. Davis v. Klmira Savings Bank, 161 V. S. 275 ; 
MeClellan v. Chipman, 164 U. S. 347. Compare Reagan v. Mercan- 
tile Trust Co., 154 U. S. 413. 

3 Ex parte Milligau, 4 Wall. 2, 120. 

8 






84 CONSTITUTIONAL LAW. 

it. At certain constitutional crises it has been insisted 
by some persons that the right to nullify any congressional 
enactments which were deemed to be unauthorized by the 
Constitution, and the right when the Union became op- 
pressive to withdraw tha consent of the State thereto, and 
thereby secede from it, were within the compass of the 
reserved rights of the States ; and therefore State rights, 
as a generic term, would in the minds of such persons 
include these. By their opponents the term would then 
be used as a term of reproach, and as indicating that 
those who professed to be their advocates held disorgan- 
izing views, and perhaps indulged revolutionary purposes. 
These extreme views are now for the most part aban- 
doned, and those who profess to be the special advocates 
and supporters of State rights put forward as their lead- 
ing principle a strict construction of the Federal Consti- 
tution, and insist that that instrument has been greatly 
perverted from its original purpose, and federal powers 
greatly enlarged at the expense of the States, under the 
doctrine of a grant of powers by implication. Among 
those who profess to be the special advocates of national 
rights are also persons of extreme views, some of whom 
contend that the nation is to be considered the fountain 
and source of all sovereignty, and the States as emana- 
tions from it; a view that would change radically the 
rules of constitutional construction which the courts have 
laid down. Thus the extreme views on one side tend to 
disintegration, and on the other to centralization ; but 
the adherents to the national, as distinguished from the 
State rights idea, may be said to advocate only a liberal 
construction of national powers as being essential to ac- 
complish the purposes for which the Union was formed, 
and therefore within the intent of those who formed it. 

In a constitutional view, State rights consist of those 
rights which belonged to the States when the Constitution 
was formed, and have not by that instrument been granted 
to the Federal government, or prohibited to the States. 



DEFINITIONS AND GENERAL PRINCIPLES. 35 

They are maintained by limiting the exercise of federal 
power to the sphere which the Constitution expressly or by 
fair implication assigns to it. This is a statement of the 
legal principle, but the parties who accept it may still in 
applying it find ample occasion for differences respecting 
the proper scope of national and State powers respectively. 

When a particular power is found to belong to the 
States, they are entitled to the same complete indepen- 
dence in its exercise as is the national government in 
wielding its own authority. Each within its sphere has 
sovereign powers. 1 

Concurrent Powers. — The mere grant of a power to 
Congress does not of itself necessarily imply a prohi- 
bition upon the States to exercise the like power. The! 
full sphere of federal powers may, at the discretion of 
Congress, be occupied or not, as the wisdom of that body 
may determine. If not fully occupied, the States may in 
some instances legislate within the same sphere, subject, 
however, to any subsequent legislation that Congress may 
adopt. It is not the mere existence of the national power, 
but its exercise, which is incompatible with the exercise 
of the same power by the States. 2 The power of the 
Federal government, said the writer in the Federalist, 
would be exclusive " where the Constitution in express 
terms granted an exclusive authority to the Union ; where 
it granted, in one instance, an authority to the Union, 
and in another, prohibited the States from exercising like 
authority ; and where it granted an authority to the 
Union, to which a similar authority in the States would be 
absolutely and totally contradictory and repugnant." 8 In 

1 Golden v. Prince, 3 Wash. 0. 0. 313 : CaJder v. Bull, 3 Dall. 886; 
Ableman v. Booth, 21 How. 500 ; Tarble's Case, 18 Wall. 397, 406. 

2 Stur^es v. CrowninsKield, 4 Wheat. 122, 196. 

:i Federalist, No. 32. " Whenever the tonus in which a jiowrr is 
granted to Congress, or the nature of the power, require that it should 
l»o exercised exclusively by Congress, the subjecl is as completely taken 
from the State legislatures as if they had been expressly forbidden t« 
act." Marshall, C. J., in Sturges v. Crowninshield, 4 Wheat. 122. 



86 CONSTITUTIONAL LAW. 

some few instances it may be that the State and the Fed- 
eral government could occupy the same field concurrently 
and simultaneously. For example, the power of Congress 
to levy taxes is not incompatible with a like power on the 
part of the States. 1 In other instances the field of legisla- 
tion may be occupied by the State governments until the 
Federal government enters it. Such is the case with re- 
gard to bankrupt laws, the States being allowed to legis- 
late on the subject when Congress has not exercised the 
power. 2 But where the nature of the power is such that 
it should be exercised exclusively by the national govern- 
ment, the subject is completely taken from the States. 

Reserved Rights. — In the incorporation in the Consti- 
tution of a bill of personal rights and liberties by the first 
ten articles of the amendments, it was deemed important 
to declare in the ninth article that "the enumeration in 
the Constitution of certain rights shall not be construed to 
deny or disparage others retained by the people." The 
occasion for this article is supposed to have been found in 
the apology of the Federalist for the absence of a bill of 
rights in the Constitution as first adopted, where the writer 
suggested that such a bill might be dangerous, since it 
would contain various exceptions to powers not granted, 
and on this very account would afford a tolerable pretext 
to claim more than were granted. 3 However unfounded 
such a fear might be, there could be no harm in affirming 

1 "Both may exist without interference, and if any interference 
should arise in a particular case, the question of supremacy would 
turn, not upon the nature of the power, but upon the supremacy of 
right in the exercise of the power in that case." Story, Com. § 438. 
With regard to the punishment of certain crimes, the Supreme Court 
has said : " The same act or series of acts may constitute an offence 
equally against the United States and the State, subjecting the guilty 
party to punishment under the laws of each government.'" Cross v. 
North Carolina, 132 U. S. 131 ; Fox v. Ohio, 5 How. 410, 433 ; Ex 
parte Siebold, 100 U. S 371, 390. 

* Ogden v. Saunders, 12 Wheat. 213 ; Butler v. Goreley, 146 U. S. 303. 

* Federalist, No. 84. 



DEFINITIONS AND GENERAL PEINCIPLES. 37 

by this amendment the principle that constitutions are not 
made to create rights in the people, but in recognition of, 
and in order to preserve them, and that if any are spe- 
cially enumerated and specially guarded, it is only be- 
cause they are peculiarly important or peculiarly exposed 
to invasion. 

The Territories. — The Constitution was made for the 
States, not for Territories. It confers power to govern 
Territories, but in exercising this the United States is a 
sovereign dealing with dependent territory according as 
in its wisdom shall seem politic, wise, and just, having 
regard to its own interests as well as to those of the 
people of the Territories. 1 It is believed, however, that 
the securities for personal liberty which are incorporated 
in the Constitution were intended as limitations of its 
power over any and all persons who might be within its 
jurisdiction anywhere, and that citizens of the Territories 
as well as citizens of the States may claim the benefit of 
their protection. 

In this dependence of the Territories upon the central 
government there is some outward resemblance to the 
condition of the American Colonies under the British 
Crown ; but there are some differences which are impor- 
tant, and indeed vital. The first of these is that the 
territorial condition is understood under the Constitution 
to be merely temporary and preparatory, and the people 
of the Territories while it continues are assured of the 
right to create and establish State institutions for them- 
selves so soon as the population shall be sufficient and 
the local conditions suitable ; while the British colonial 
system contained no promise or assurance of any but a 
dependent government indefinitely. The second is that 

1 American Tns. Co. v. Canter, 1 Pet, 511 ; Scott v. Jones, 5 How. 
343; National Hank v. Yankton Co., 101 U. S. 129. It mav exclude 
polygamists from the right of suffrage in the Territories, Murphy 
v. Ramsey, 114 U. S. 15. Soo ou tho government of tlio Territories 
post, Ch. VIII. 



38 CONSTITUTIONAL LAW. 

above given, that the people of the American Territories 
are guaranteed all the benefits of the principles of consti- 
tutional right which protect life, "liberty, and property, 
and may defend them under the law, even as against the 
action of the government itself ; while in the Colonies 
these principles were the subject of dispute, and, if ad- 
mitted, would be within the control of an absolute impe- 
rial legislature, which might overrule them at will. There 
is also a difference in respect to taxation, which, though 
not so striking, is still important. The Territories levy 
their own taxes for all local purposes, and they are never 
taxed separately for national purposes, but only as parts 
of a whole country, and under the same rules and for the 
same purposes as are the States. Nor is it intended to 
realize from them any revenue for the national treasury 
beyond what is expended by the United States in their 
interest. 

Amendments. — In the adoption of the Constitution 
provision was made for amendments to be made under 
regular forms, which should not only give to the people 
an easy method of removing any evils that might be 
found to exist in their institutions, and of keeping them 
in sympathy with the prevailing sentiments and desires of 
the people, but should take away all reasonable excuse for 
attempts at revolution by force. Two methods of amend- 
ment were provided for. First) by Congress — two thirds 
of both houses assenting — proposing amendments for 
ratification by the legislatures or by conventions of the 
States, which shall be valid to all intents and purposes 
when ratified by three fourths of the States; and second, 
by Congress on the application of two thirds of the States 
calling a convention for proposing amendments, which 
when ratified in like manner shall be valid as aforesaid. 
The only restriction imposed on the power to amend is 
this: that "No State without its consent shall be de- 
prived of its equal suffrage in the Senate." x In theory, 
i Const., Art. V. 



DEFINITIONS AND GENERAL PRINCIPLES. 39 

except as changes are so made, the Constitution is to re- 
main the settled and definite law of the nation ; meaning 
the same thing to-day, to-morrow, and forever ; its writ- 
ten provisions, stipulations, and guaranties being subject 
to no such growth, amplification, and modification as 
inheres in the unwritten constitution of Great Britain. 

But it is not in the nature of institutions to remain 
stationary, however they may be formulated and declared, 
especially when the government has within itself the 
power to determine its own jurisdiction, and to solve in 
its own favor at discretion all questions of disputed au- 
thority. It has been truly said that " power, when it has 
attained a certain degree of energy and independence, 
goes on generally to further degrees. But when below 
that degree the direct tendency is to further degrees of 
relaxation, until the abuses of liberty beget a sudden 
transition to an undue degree of power." 1 The govern- 
ment of the United States was below the degree of 
self- protecting energy while the Articles of Confederation 
constituted the bond of union, but it attained at a bound 
to due energy and independence under the administration 
of Washington and Hamilton, while the judiciary was in 
accord with their views, and if the period of relaxation 
ever came, its influence upon the authority asserted for 
the government was not great, and was only temporary. 
The principles that at one time applied the power over 
commerce to the regulation of navigation, 2 at a later day 
are found equally applicable to traffic" and travel by rail- 
road, 8 and communication by telegraph 4 and telephone; 5 
and though these new applications of principle do not in 
the least depart from or enlarge former doctrines, they 
nevertheless strengthen greatly the national power by tlitj 

1 Madison, Life by Rives, ii. 041. 

a Gibbons v. Ogden, 9 Wheat, i. 

:! Railroad Co. v. Richmond, 19 Wall. 584. 

4 Pensacola Tel. Co. r. West. I'n. Tel. Co., 96 U. S. I. 

6 In re Penn. Tel, Co., 48 N. J. Eq. 91. 



40 CONSTITUTIONAL LAW. 

immensity of the interests it is thus invited to take undet 
its control. So the authority to purchase territory at one 
time is found equal to the annexation of an independent 
State at another. The gradual energizing of federal au- 
thority has been accomplished quite as much by the course 
of public events as by the new amendments to the Consti- 
tution ; and however careful every Federal and State offi- 
cial and every citizen may be so to perform all political 
functions as to preserve under all circumstances the true 
constitutional balance of powers, and to sanction no un- 
constitutional encroachments, there can be no question 
that the new interests coming gradually within the pur- 
view of federal legislation, and the increase in magnitude 
and importance of those already under federal control, 
must have a still further tendency in the direction 
indicated. 1 

Majority Rule. — Government in the United States and 
in the several States, in all its grades, is representative ; 
the body of the people performing very few acts directly, 
except that of adopting the Constitution. When they act 
directly, the result of their will must be ascertained by 
such preponderating vote as the law shall prescribe. This 
may be a majority vote, or it may be merely the vote in 
which the largest number of electors agree. In determin- 
ing upon a majority or plurality, those only are counted 
who actually participated in the election, except in a few 
cases where by some constitutional provision an actual 
majority of all the electors is required. 

American government is frequently spoken of as a gov- 
ernment based on faith in majorities, and the machinery 
of election as being provided merely to ascertain what 
the will of the majority is. But the government is never 
handed over to the absolute control of the majority, and 
many precautions are taken to prevent its expressing ex- 
clusively their will : — 1 . In the Constitution many per- 

1 For a discussion of this subject see Bryce, American Common' 
wealth, 3d Am. ed., vol. i., ch. xxxi.-xxxv. 



DEFINITIONS AND GENERAL PRINCIPLES. 41 

manent rules are prescribed which control the majority 
absolutely, and which cannot be changed except by the 
slow process of constitutional amendment. 2. The times 
and methods of election of legislative and executive offi- 
cers are so contrived that in different branches of the 
government the majority of one period will be restrained 
and checked by the majority of another, and it is scarcely 
possible that any considerable minority shall not have its 
representatives, and be entitled to be heard through them 
in the legislature, in ways that shall at least hold the 
majority to due accountability for their conduct and meas- 
ures. It must often be the case that one house of the 
legislature will represent the views of a popular majority, 
and the other those of a minority only ; but for all pur- 
poses of enacting laws, the latter has as much authority 
as the former. 3. The electoral system is so contrived 
that the President is sometimes chosen by a minority of 
the people ; but unless a majority is overwhelming, he 
may generally defeat its measures by his veto. 4. All 
the safeguards which under kingly government were evei 
interposed against the tyrannical power of rulers are in- 
corporated in the bills of rights in the American constitu- 
tions as absolute limitations laid on the power of the 
majority for the protection of the liberty, property, privi- 
leges, and immunities of the minority, and of every indi- 
vidual citizen ; and the judiciary is given a power to 
enforce these limitations, irrespective of the will or con 
trol of the legislature, such as it has never possessed in 
any other country. So far then from the government 
being based on unlimited confidence in majorities, a pro- 
found distrust of the discretion, equity, and justiee of 
their rule is made evident in many precautions and chocks, 
and the majority is in fact trusted with power only so far 
as is absolutely essential to the working of republican 
institutions. 1 
1 See tho discussion in Boutmy, Const. Law (English trauslatiou)* 

p. no. 



42 CONSTITUTIONAL LAW. 

Instruction of Representatives. — The care taken to im- 
pose restraints on the action of temporary majorities is 
sufficient to demonstrate the want of constitutional basis 
for the opinion that representatives are bound to obey the 
instructions of their constituents from time to time com- 
municated to them. But it would be conclusive also 
against such an opinion, that no method is provided, or is 
available, by means of which instructions can be authori- 
tatively given. A representative in Congress is chosen 
by popular vote, at an election of which all must take no- 
tice ; but there is no machinery for gathering the voice of 
all electors again until the next general election, and it is 
then gathered only in the ballots which express a choice 
between candidates. Between the elections the constitu- 
ents may speak through the press and by petitions, but 
these are not authoritative, and it can seldom be known 
from such expressions what is the popular will. Senators 
sometimes consider themselves bound to respect and obey 
the instructions of State legislatures ; but these are com- 
posed only of delegates of the people, and they may rep- 
resent the sentiments of the constituency no more than 
the senator himself. 

But aside from practical difficulties, the right to instruct 
representatives cannot on principle be sustained. Repre- 
sentatives are chosen in States and districts ; but when 
chosen they are legislators for the whole country, and are 
bound in all they do to regard the interest of the whole. 
Their own immediate constituents have no more right than 
the rest of the nation to address them through the press, 
to appeal to them by petition, or to have their local in- 
terests considered by them in legislation. They bring 
with them their knowledge of local wants, sentiments, 
and opinions, and may enlighten Congress respecting 
these, and thereby aid all the members to act wisely in 
matters which affect the whole country; but the moral 
obligation to consider the interest of one part of the coun- 
try as much as that of another, and to legislate witb a 



DEFINITIONS AND GENERAL PRINCIPLES. 43 

view to the best interests of all, is obligatory upon every 
member, and no one can be relieved from this obligation 
by instructions from any source. Moreover, the special 
fitness to legislate for all, which is acquired by the asso- 
ciation, mutual information, and comparison of views of 
a legislative body, cannot be had by the constituency, 
and the advantages would be lost to legislation if the 
right of instruction were recognized. 



44 CONSTITUTIONAL LAW 



CHAPTER III. 

DISTRIBUTION OF THE POWERS OF GOVERNMENT. 

Necessity of Separation of Powers. — When all the 
powers of sovereignty are exercised by a single person or 
body, who alone makes laws, determines complaints of 
their violation, and attends to their execution, the question 
of a classification of powers can have only a theoretical im- 
portance, for the obvious reason that nothing can depend 
upon it, which can have practical influence upon the hap- 
piness and welfare of the people. But inasmuch as a 
government with all its powers thus concentrated must of 
necessity be an arbitrary government, in which passion 
and caprice is as likely to dictate the course of public af- 
fairs as a sense of right and justice, it is a maxim in 
political science that, in order to the due recognition and 
protection of rights, the powers of government must be 
classified according to their nature, and each class in- 
trusted for exercise to a different department of the gov- 
ernment. This arrangement gives each department a 
certain independence, which operates as a restraint upon 
such action of the others as might encroach on the rights 
and liberties of the people, and makes it possible to estab- 
lish and enforce guaranties against attempts at tyranny. 
We thus have the checks and balances of government, 
which are supposed to be essential to free institutions. 
I Classification. — The natural classification of govern- 
mental powers is into legislative, executive, and judicial. 
The legislative power is the power to make laws and to 
alter them at discretion ; the executive power is the power 



DISTRIBUTION Otf POWEBS Otf GOVERNMENT. 45 

to see that the laws are duly executed and enforced ; the 
judicial power is the power to construe and apply the law 
when controversies arise concerning what has been done 
or omitted under it. Legislative power therefore deals 
mainly with the future, and executive power with the 
present, while judicial power is retrospective, dealing only 
with acts done or threatened, promises made, and injuries 
suffered.: 1 The line of division is nevertheless somewhat 
indefinite, since in many cases the legislature may desig- 
nate the agents for the execution of its enactments, and 
the judiciary is expected to enforce the law in such contro- 
versies as are brought before it ; while the executive and 
the judiciary may respectively make rules which are in the 
nature of laws, for the regulation of its own course in the 
discharge of its duties. There are then powers strictly 
legislative, others strictly executive, and others strictly 
judicial ; while still other powers may be exercised by one 
department or by another, according as the law may pro- 
vide. For illustration the case may be taken of rules for 
regulating the practice of courts, which are sometimes 
made by the legislature and sometimes by the courts ; and 
also the case of the appointment of officers and agents, 
subordinate to the chief executive, to see to the enforce- 
ment of the laws ; which can be made by law except as 
the Constitution has conferred the power upon the execu- 
tive. 2 And whenever a power is not distinctly either 
legislative, executive, or judicial, and is not by the Con 

1 Wayman v. Southard, 10 Wheat. 1, 40-, Bates u. Chapman, '2 
Chip. (Vt.) 77; Greenough ;;. Greenough, 11 Penn. St 4SU . Jones r. 
Perry, 10 Yerg. (Term ) 59 ; Shumway i\ Bennett, 29 Mich. 461; 
Taylor v. Place, 4 R. T. 3'24 ; Ex parte Burns, 1 Term. Ch. 83. 

2 Field >: People, :> 111. 80; Bridges v. Shalleross, »'> W. Ya. 562; 
People u Freeman, 80 Cal. 233 ; People v. Osborn, 7 Col 906. The 
legislature may create a hoard of civil service commissioners who 
shall prescribe the qualifications of all officers except (hose provided 
for in (he Constitution. Opinion of justices, 138 Mass. 601. In In- 
diana legislative power to prescribe the manner of appointing does 
not empower the legislature to appoint. State v. Denny, 118 lnd 44& 



46 CONSTITUTIONAL LAW. 

stitution distinctly confided to a department of the govern 
ment designated, the mode of its exercise, and the agency, 
must necessarily be determined by law ; in other words, 
must necessarily be under the control of the legislature. 1 

But when a department is created for the exercise of 
judicial authority, the act itself constitutes a setting apart 
to it for exercise of the whole judicial power of the sover- 
eignty with such exceptions only as the Constitution itself 
may make. 2 As therefore the determination of a contro- 
versy on existing facts where there are adverse inter- 
ests is judicial action, the act is not within the compass of 
legislation ; neither is the setting aside of judgments and 
granting of new trials ; 3 nor the opening of controversies 
after remedy under the general law is gone ; 4 nor, it 
seems, the giving of an appeal after the time allowed by 
law has expired, 5 though as to this last there are de- 
cisions contra* Neither can the legislature bind parties 
interested by a recital of facts, or prescribe conclusive 
rules of evidence, for either of these would be only ar? 
indirect method of disposing of controversies. 7 These 

1 Calder v. Bull, 3 Ball. 386. 

2 Greenough v. Greenough, 11 Penn. St. 489 ; Alexander v. Bennett, 
60 N. Y. 204; Van Slyke v. Ins. Co., 39 Wis. 390; Risser v. Hoyt, 53 
Mich. 185; In re Cleveland, 51 N. J. L. 311. Courts established by 
the legislature cannot exercise jurisdiction to the exclusion of that 
conferred by the Constitution on other courts. Montross v. State, 61 
Miss. 429. But if the Constitution does not distribute the judicial 
power, the legislature has the power to distribute it. Com. v. Hippie, 
69 Penn. St. 9 ; State v. Brunswick, 42 N. J. L. 51. 

3 Lewis v. Webb, 3 Me. 326 ; Dorsey v. Dorsey, 37 Md. 64; Oliver 
v. McClure, 28 Ark. 555; Hooker v. Hooker, 18 Miss. 599. 

* Bradford v. Brooks, 2 Aik. (Vt.) 284; Brent v. Chapman, 5 
Cranch, 358 ; Leffingwell v. Warren, 2 Black, 599. 

5 Hill v. Sunderland, 3 Vt. 507 ; Burch v. Kewberry, 10 N. Y. 374. 
See Carleton v. Goodwin's Executor, 41 Ala. 153. 

6 Prout v. Berry, 2 Gill (Md.), 147 ; Page v. Mathew's Admr., 40 
Ala. 547 ; Wheeler's Appeal, 45 Conn. 306. To take away a statutory 
right of appeal is not an exercise of judicial authority. Ex parte 
McCardle, 7 Wall. 506. 

7 Parmelee v. Thompson, 7 Hill (X. Y.), 77 ; Lothrop v. Stedm&n, 



DISTRIBUTION OF POWERS OF GOVERNMENT. 47 

cases will sufficiently suggest the proper rule of decision 
for others. 1 

The Departments of Government. — The Constitution 
of the United States creates three departments of gov- 
ernment, and directly or by implication determines their 
powers. 

The Legislature. — All the legislative powers granted 
by the Constitution are vested in a Congress consisting of 
a Senate and House of Representatives, 2 subject to a 
qualified veto in the President. 

The House of Representatives is composed of members 
chosen every second year by the people of the several 
States, and the electors in each State must have the 
qualifications requisite for electors of the most numerous 
branch of the State legislature. 8 Each State will deter- 
mine for itself what these qualifications shall be. 
' No person can be a representative who has not attained 
the age of twenty-five years, and been seven years a citizen 
of the United States, or who at the time is not an inhabi- 
tant of the State in which he is chosen. 4 

Representatives are apportioned among the States ac- 
cording to their respective numbers, counting the whole 
number of persons in each State, excluding Indians not 
taxed. 5 

The Senate is composed of two senators from each State, 
chosen by the legislature thereof for six years, and divided 
into three classes, so that one class is chosen every second 
year. If vacancies happen, by resignation or otherwise, 
during the recess of the legislature of any State, the ex- 

42 Conn. 583, 592 ; McCready v. Sexton, 29 Iowa, 356; Groesbeek v 
Seeley, 13 Mich. 329. 

1 In Cooley, Const. Lim., ch. 5, is a largo collection of authorities 
on this general subject. 

2 Const., Art. I. § 1. 3 Const., Art. T. § 2. 

4 Const., Art. I. § 2, cl. 2. It is not necessary that a representative 
should be a resident of the district from which he may be elected. 

6 Const. Amendment 14, § 2. Note the qualification in the lattel 
part of the section. 



48 CONSTITUTIONAL LAW. 

ecutive thereof may make temporary appointments untii 
the next meeting of the legislature, which shall then fill 
such vacancies. 1 

No person shall be a senator who shall not have attained 
the age of thirty years and been nine years a citizen of the 
United States, and who shall not, when elected, be an in- 
habitant of the State from which he shall be chosen. 2 j 

The House chooses its own Speaker, and other officers. 3 
The Vice-President of the United States is President of 
the Senate, but without a vote except in case of equal di- 
vision. The Senate chooses its other officers, and also a 
President pro tempore in the absence of the Vice-President, 
or when he shall exercise the office of President. 4 

The times, places, and manner of holding elections for 
senators and representatives shall be provided in each 
State by the legislature thereof ; but Congress may at any 
time by law make or alter such regulations, except as to 
the place of choosing senators. 5 

It is provided by law that representatives in Congress 
shall be chosen in single districts ; 6 and that the elections 
shall take place on the Tuesday next after the first Mon- 
day of November. 7 Vacancies are filled as may be provided 
by State laws. 8 All votes for representatives in Congress 
must be by written or printed ballot, and all votes received 
or recorded contrary to this provision are of no effect. 9 

For the election of senators it is provided that the legis- 
lature of each State which is chosen next preceding the 
expiration of the time for which any senator was elected 
to represent such State in Congress, shall, on the second 
Tuesday after the meeting and organization thereof, pro- 
ceed to elect a senator. 10 If an election fails to be made 
the first day, at least one vote is required to be taken 

i Const., Art. I. § 3. 6 Rev. Stat. U. S., § 23. 

2 Const., Art. I. § 3. 7 Rev. Stat. U. S., § 25. 

3 Const., Art. V. § 2. 8 Rev. Stat. U. S., § 26. 

* Const., Art. I. § 8. 9 Rev. Stat. U. S., § 27. 

* Const., Art. I. § 4. 10 Rev. Stat. U. S., § 14, 



DISTRIBUTION OF POWERS OF GOVERNMENT. 49 

every day thereafter, during the session of the legislature, 
until a senator is chosen. 1 An existing vacancy is filled 
at the same time and in the same way ; 2 and a vacancy 
occurring during the session is filled by election, the pro- 
ceedings for which are had on the second Tuesday after 
the legislature has organized and has notice of such 
vacancy 3 

When Congress convenes, the President of the Senate 
administers the oath to its members, 4 and takes charge of 
the organization. The clerk of the next preceding House 
of Representatives makes a roll of the representatives 
elect, and places thereon the names of those persons, 
and of those only, whose credentials show that they 
were regularly elected in accordance with the laws of 
their States respectively, or the laws of the United 
States. 5 In case of vacancy in the office of clerk, or of 
his absence or disability, the sergeant-at-arms of the next 
preceding house performs this duty ; and, in turn, it may 
devolve upon the doorkeeper in case of vacancy in the 
office of sergeant-at-arms, or his absence or disability. 6 
The clerk acts as temporary presiding officer of the House 
until a Speaker is chosen. The Senate is supposed to 
have a presiding officer at all times. 

Each house is judge of the elections, returns, and qual- 
ifications of its own members, and may determine the 
rules of its proceeding, 7 punish its members for disorderly 
behavior, and, with the concurrence of two thirds, expel a 
member. 8 Each house shall also keep a journal of its 

i Rev. Stat. U. S., § 15. * Rev. Stat. U. S., § 28. 

2 Rev. Stat. U. S., § 16. 5 Rev. Stat. U. S., § 31. 

8 Rev. Stat. IT. S., § 17. ° Rev. Stat. U. s„ §§ 32, 33. 

7 The House may pass a rule providing that the Dames of members 
present but not voting may be noted by the clerk, reported to the 
Speaker, and counted in determining the presence of a quorum. United 
States v. Ballin, 144 IT. S. 1. 

8 This is a power that by common parliamentary law would exist 
without being expressly conferred. It is "a necessary and incidental 
power to enable the honse to perform its high I'nnetions, and is neees- 

4 



50 CONSTITUTIONAL LAW. 

proceedings, 1 and from time to time publish the same, 
excepting such parts as in their judgment may require 
secrecy, and the yeas and nays of the members of either 
house on any question shall, at the demand of one fifth 
of those present, be entered on the journal. 2 

A majority of each house constitutes a quorum to do 
business, but a smaller number may adjourn from day to 
day, and compel attendance of absent members. But 
neither house during the session of Congress shall without 
the consent of the other adjourn for more than three days, 
nor to any other place than that in which the two houses 
shall be sitting. 3 

Senators and representatives are paid by the United 
States a compensation determined by law. 4 They also, in 
all cases except treason, felony, and breach of the peace, 
are privileged from arrest during their attendance at the 
sessions of their respective houses, and in going to and 
returning from the same ; 5 and for any speech or debate 

sary to the safety of the State. It is a power of protection." And 
a member may be expelled for misconduct when away from the house 
on duty as a committee-man, as well as for misconduct during its 
sessions. Hiss v. Bartlett, 3 Gray (Mass.), 468. But if the house 
exceeds its authority in an attempted investigation, a person cannot 
be punished for contempt in refusing to answer before the investigat- 
ing committee of the house. Kilbourn v. Thompson, 103 U. S. 168. 
See In re Chapman, 166 U. S. 661. 

1 Whether expunging a resolution, as was done by the Senate in the 
case of the resolution of censure of General Jackson, is not a violation 
of this provision, was much discussed in that case. Benton, Thirty 
Years' View, ch. 159-161 ; Webster's Speeches, iv. 259. If there is 
a variance between an enrolled act and the journal of Congress, the 
former will be held by the courts to be the unimpeachable law. Field 
v. Clark, 143 U. S. 649. The rule is different regarding State acts in 
some of the States. See cases cited, Ibid., pp. 661-666 ; and also Har- 
wood v. Wentworth, 162 U. S. 547. 

2 Const., Art. I. § 5. 3 Const., Art. I. § 5. 
4 Const., Art. I. § 6. 

6 Const., Art. I. § 6. Holiday v. Pitt, 2 Strange, 985 ; Hoppin v. 
Jenckes, 8 K. I. 453. This privilege is that of the house to enable it 
to perform its functions with the aid of all its members, but it is also 



DISTRIBUTION Otf POWERS OF GOVERNMENT. 51 

In either house they shall not be questioned in any other 
place. 1 

All bills for raising revenue must originate in the House 
of Representatives, but the Senate may propose or concur 
with amendments. 2 All other bills may originate indiffer- 
ently in either house, and any member of either house 
may introduce bills under its rules. 

No senator or representative shall, during the time for 
which he was elected, be appointed to any civil office under 
the authority of the United States which shall have been 
created, or the emoluments whereof shall have been 
increased, during such time ; and no person holding any 
office under the United States shall be a member of either 
house during his continuance in office. 3 

The Veto Power. — The power to veto legislation, which 
is conferred upon the President, makes him in effect a 
third branch of the legislature. The power is legislative, 
not executive, and the questions presented to his mind 
are precisely the same as those the two houses of Con- 
gress must determine in passing a bill. Whether the 
proposed law is necessary or expedient, whether it is con- 
stitutional, whether it is so framed as to accomplish its 

the privilege of the people, as well as of the member himself. Coffin 
v. Coffin, 4 Mass. 1 . 

1 Const., Art. I. § 6. It is held in England that the privilege does 
not extend to the publishing by the member of his speeches. The 
King v. Creevey, 1 M. & S. 273 ; The King v. Abingdon. 1 Esp. 226. 
Compare Davison v. Duncan, 7 El. & Bl. 229. But in this country, 
where all debates are published by authority of law. the rule, we 
should say, must at least cover the official publication. But the 
privilege is confined strictly to what is said in the house or in com- 
mittee in the discharge of legislative duty. Coffin r. Coffin, 4 Mass. 1. 

2 Const., Art. I. § 7. In this provision is Incorporated a principle 
of the English constitution, -which requires all revenue bills to originate 
in the House of Commons. As to what are revenue bills, sec Mav, 
Const. Hist., ch. 7. The subject was much considered in debates in 
Congress in the year 1S72. See also Twin City Bank V, Nobeker, 1G7 
U. S. 196. 

8 Const., Art. I. § 6. 



62 CONSTITUTIONAL LAW. 

intent, and so on, are questions transferred from the two 
houses to the President with the bill itself. 

The Executive. — The executive power is vested in a 
President, who holds his office during a term of four 
years, and, together with a Vice-President, chosen for the 
same term, is elected by electors appointed in the sev- 
eral States for the purpose. 1 The State legislatures have 
exclusive authority to determine the mode of choosing 
electors. 2 No person except a natural-born citizen, who 
has been fourteen years a resident within the United 
States, and has attained the age of thirty-five, is now 
eligible to the office of President 3 or of Vice-President. 4 

In case of the removal of the President from office, or 
his death, resignation, or inability to discharge its powers 
and duties, the same devolves on the Vice-President, and 
Congress may by law provide for the case of removal, 
death, or resignation, or inability both of the President 
and Vice-President, declaring what officer shall then act 
as President until the disability be removed or a President 
elected. 5 / 

The Judiciary. — The Constitution provides that the 
judicial power of the United States shall be vested in one 
Supreme Court, and in such inferior courts as Congress 

1 Const., Art. II. § 1 ; Amendment 12. The manner of making 
choice, where no candidate has a majority of electoral votes, is ex- 
plained by this amendment. 

2 McPherson v. Blacker, 146 U. S. 1. 

8 Const., Art. II. § 1. * Const., Amendment 12. 

5 Const., Art. II. § 1. If the Vice-President becomes acting Presi- 
dent, he holds for the full term. Congress has provided by law that 
in case of removal, death, resignation, or inability of both the President 
and Vice-President, the office shall devolve upon jme of his constitu- 
tional advisers in the following order : Secretary of State, Secretary of 
the Treasury, Secretary of War, Attorney-General, Postmaster-General, 
Secretary of the Navy, Secretary of the Interior. But the officer must 
be one who has been confirmed by the Senate, and who is constitu- 
tionally eligible to the office of President. He will hold until the dis- 
ability is removed, or until the office is filled at the regular election. — 
Act of 1886, 24 Stat, at Large, X. 



DISTRIBUTION OF POWERS OF GOVERNMENT. 53 

may from time to time ordain and establish. 1 The judges 
both of the Supreme and inferior courts hold their offices 
during good behavior. As the Constitution does not de- 
termine the number of the judges of the Supreme Court, 
the number may be changed at pleasure, except that it 
cannot be diminished so as to deprive a judge of his office. 
The other courts exist at the will of Congress, and may be 
changed and modified at discretion, subject to a like limi- 
tation that a judge cannot be legislated out of his office 
w1ijl3 the office itself remains. 2 

In a time of war, when portions of hostile territory are 
in the military occupation of federal forces, the President 
as commander-in-chief may appoint provisional courts for 
the determination of controversies within such territory, 
and the administration of justice. 3 But such courts, es- 
tablished on foreign soil, are mere agents of the military 
power to assist in preserving order and protecting the in- 
habitants in their persons and property ; and they cannot 
adjudicate upon questions of prize, or decide upon the 
rights of the United States or of individuals. 4 

The territorial courts are not created by Congress under 
the power conferred by the articles above referred to, but 
in the exercise of the general sovereignty of the United 
States over the territory it may possess. The judges of 
such courts may therefore be appointed for definite terms, 
removable by the President. 5 

Upon judges as such no functions can be imposed ex- 
cept those of a judicial nature. They cannot therefore be 

1 Const., Art. TIL § 1. The power "to constitute tribunals inferioi 
to the Supremo Court " is conferred upon Congress by Article I. § S. cl. 9. 

2 The legislative precedent is in favor of the power in Congress to 
indirectly deprive judges of their offices by abolishing courts. Refer* 
ence is here made to the abolition of District Courts when Mr. Jefferson 
became President. There are State precedents of the same sort. 

3 decker v. Montgomery, 13 How. 498; The Grape Shot, 9 Wall. 129 
See Edwards v. Tanneret, 12 Wall. 44'6. 

1 decker?'. Mongomery, 18 llow. -198. 
* American Ins. Co. v. Canter, l Pet. 611 



54 CONSTITUTIONAL LAW. 

required to act as commissioners to determine questions 
subject to the consideration and supervision of Congress 
or of an executive officer ; 1 or to make or review as ap- 
praisers the assessments that have been made of property 
for taxation ; 2 nor can they by virtue of equity powers 
appoint officers to assess and collect taxes from munici- 
palities, even to pay judgments against such municipalities, 
standing on their own records ; 3 nor can they determine 
whether territory shall be incorporated as a village. 4 
When judicial authority is conferred by law upon a court, 
it must be exercised by the judges sitting and organized 
as a court, and not by the judge out of court. 5 

1 Note to Hayburn's Case, 2 Dall. 409 ; United States v. Ferreira, 
13 How. 40. The remark in the text has no reference to courts like 
the Court of Claims, which, being a tribunal created to consider de- 
mands against the government, may have its authority restricted to 
any extent that seems wise. 

2 Auditor of State v. Railroad Co., 6 Kans. 500 ; Munday v. Rahway, 
43 N. J. L. 338. In Massachusetts it has been held that courts cannot 
be empowered to appoint supervisors of election. Case of Supervisors 
of Election, 114 Mass. 247. 

8 Rees v. Watertown, 19 Wall. 107; Heine v. Levee Commissioners, 
1 Woods, 246; 19 Wall. 655. 

4 Shumway v. Bennett, 29 Mich. 451 ; State v. Simons, 32 Minn. 
540; Galesburg v. Hawkinson, 75 111. 152. But it is held that the 
propriety of bringing territory into a municipality by extending its 
limits may be decided by a court, as being not purely a legislative 
question. Burlington v. Leebrick, 43 Iowa, 252 ; Wahoo v. Dickinson, 
23 Neb. 426. 

5 Note by the Chief Justice to United States v. Ferreira, 13 How. 52. 
A judge cannot be empowered to determine which claimant of an 
office is entitled to hold it during a contest. If such power is executive, 
it cannot be given to a judge ; if judicial, it must be vested in a court. 
In re Cleveland, 51 N. J. L. 311. But duties in connection with the 
adoption of children may be imposed by the legislature upon a judge 
without involving any exercise by him of judicial power. In re 
Stevens, 83 Cal. 322. 



POWERS OF CONGRESS. 55 



CHAPTER IV. 

THE POWERS OF CONGRESS. 

National JPoviers. — In any sovereign state, the law- 
making department is the repository of most power, and 
it is also the most immediate representative of the sov- 
ereignty. Not that the others are subordinate within 
their respective spheres, but the exercise of governmental 
authority begins with the making of laws, and t*he other 
departments execute and administer what the law-making 
department enacts. For this reason the Constitution, in 
enumerating the powers which shall be exercised by 
authority of the general government, confers them in 
terms upon Congress. But this in legal effect is confer- 
ring them upon the United States, and b}^ implication a 
corresponding executive and judicial power is also given, 
though to a large extent the exercise of these powers 
respectively is left to be provided for in the discretion of 
Congress. 

Section I. — Taxes, Loans, and Debts. 

The Power. — In the specific enumeration of national 
powers, it is first declared that " The Congress shall have 
I tower to lay and collect taxes, duties, imposts, and ex- 
cises, to pa} r the debts, and provide for the common de- 
fence and genera] welfare of the United States ; but all 
duties, imposts, and excises shall be uniform throughout 
the United States." 1 Thus a power is conferred which is 
essential to the maintenance of independent government, 
and the want of which was one of the principal causes of 
the failure of the Confederacy. The purposes for which 

i Const., Art. I. § 8, cl. 1. 



56 CONSTITUTIONAL LAW. 

the power may be exercised are also specified, but in such 
general terms that they comprehend all the needs of gov- 
ernment. The requirement of uniformity' in the levy of 
duties, imposts, and excises is an important limitation to 
a power which otherwise might have been exercised par- 
tially and oppressively. 

Definition, -f The word " taxes/' in its most enlarged 
sense, embraces all the regular impositions made by gov- 
ernment upon the person, propel^, privileges, occupa- 
tions, and enjoyments of the people for the purpose of 
raising public revenue. 1 As duties, imposts, and excises 
are laid or imposed for this purpose, they are in a strict 
sense taxes, and no doubt might have been levied by the 
government under that designation, without being here 
specifically mentioned. But as the term " taxes" is some- 
times used in contradistinction to these levies, it conduced 
to certainty to name them separately. It was also a con- 
venience in view of the special rule which was prescribed 
for their lev\ r . The terms " duties " and " imposts " are 
nearly synonymous, and are usually applied to the levies 
made by government on the importation or exportation c\' 
commodities, while the term " excises" is applied to the 
taxes laid upon the manufacture, sale, or consumption of 
commodities within the country, and upon licenses to pur- 
sue certain occupations. 2 ) 

Taxes are distinguished from arbitrary levies in that 
they are laid according to some rule which apportions the 
burden between the subjects thereof. An exaction which 
is made without regard to anj- rule of apportionment is 
therefore not a tax, and is not within the constitutional 
authority of the government. 3 

1 Montesq., Sp. of the L., b. 13, eh. 1 ; Perry v. Washburn, 20 Cal. 
318, 350; Hilbish v. Catherman, 04 Fenn. St. 154, 159; Loan Associa* 
tion v. Topeka, 20 Wall. 655, 664; Opinion of Judges, 58 Maine, 590. 

2 Cooley on Taxation, 3. 

3 Sutton's Heirs v. Louisville, 5 Dana (Ky.), 28-31 ; Grim v. Schoc*' 
District. 57 Penn. St. 433. 



POWERS OF CONGRESS. 57 

The power to tax is an incident of sovereignty, and is 
coextensive with the subjects to which the sovereignty ex- 
tends. It is unlimited in its range, acknowledging in its 
very nature no limits, so that security against its abuse 
is to be found only in the .responsibility of the legislature 
which imposes the tax to the constituency who are to 
pay it. 1 A people, however, in establishing their consti- 
tution, and delegating to their representatives this power, 
may impose at discretion limits to its exercise ; and many 
effective limitations have been imposed in the constitutions 
of the States. 

The Power Discretionary. — As respects the hind of 
tax that shall be laid, or the subjects upon which it shall 
be imposed, every government will regulate its action 
according to its own view of what will best accomplish the 
end, and best subserve the general interest. Therefore, 
taxes may be levied upon either land or personalty to the 
exclusion of the other, or upon occupations in preference 
to either or both, or thej 7 may be collected in the form of 
duties on imports or excises on domestic productions. 
The United States for the most part has collected its rev- 
enues from duties on imports, but at exceptional periods 
has levied taxes on land, occupations, manufactures, in- 
comes, deeds and other contracts, and many other sub- 
jects. The basis of apportionment in the case of imports 
and excises has sometimes been value, sometimes weight, 
quantity, or quality, and sometimes other standards, while 
upon deeds and contracts the apportionment has been ac- 
cording to number or importance, and the tax h:is been 
collected by the sale of stamps. By the Constitution the 
United States is precluded from laving any tax or duty on 
articles exported from any State.' 2 The requirement that 

1 Veazie Bank v. Fcnno, 8 Wall. 533, 548, McCulloch r. Mary- 
land, 4 Wheat. 310, 428 , Howell r. State.8 Gill (Md.), 14 ; People v. 
Brooklyn, 4 N. Y. 41i); Pullen v. Commissioners, 66 N. C. 361 ; Tay- 
lor v. rainier, 31 Cal. 240 ; State r. Newark, 26 N. X 519 . Williams 
v. Cannnaek, 27 Miss. 209, 219 j Parham v. Justices, 9 Qa, 841, 352. 

" Const., Art. I. § 9, el. 6. 



58 CONSTITUTIONAL LAW. 

an article intended for exportation shall be stamped to 
prevent fraud and secure the carrying out of the declwed 
intent, is not laying a duty, even though a small charge 
is made for the stamp. 1 It would be otherwise if the 
stamp were required for the purpose of revenue. 2 

The Purposes. — Constitutionally a tax can have no 
other basis than the raising of a revenue for public pur- 
poses, and whatever governmental exaction has not this 
basis is tyrannical and unlawful. A tax on imports, there- 
fore, the purpose of which is, not to raise a revenue, but 
to discourage and indirectly prohibit some particular im- 
port for the benefit of some home manufacture, may well 
be questioned as being merely colorable, and therefore not 
warranted by constitutional principles. But if any income 
is derived from the levy, the fact that incidental protect 
tion is given to home industry can be no objection to it, 
for all taxes must be laid with some regard to their effect 
upon the prosperity of the people and the welfare of the 
country, and their validit3 T cannot be determined by the 
money returns. This rule has been applied when the lev} 7 
produced no returns whatever ; it being held not compe- 
tent to assail the motives of Congress by showing that the 
levy was made, not for the purpose of revenue, but to an- 
nihilate the subject of the levy by imposing a burden 
which it could not bear. 3 Practically, therefore, a law 
purporting to levy taxes, and not being on its face subject 
to objection, is unassailable, whatever may have been the 
real purpose. And perhaps even prohibitory duties may 
be defended as a regulation of commercial intercourse. 

i Pace v. Burgess, 92 U. S. 372. 

2 Almy v. California, 24 How. 169. 

3 Veazie Bank v. Fenno, 8 Wall. 533 ; National Bank v. United 
States, 101 U. S. 1. Mr. Justice Story, in his Commentaries on the 
Constitution, asserts broadly that "the absolute power to levy taxes 
includes the power in every form in which it may be used, and for 
every purpose to which the legislature may choose to apply it. It 
therefore includes the power to levy protective duties, though the 
duties may in effect be prohibitory." — Story on Const, § 965. 



POWEKS OF CONGRESS. 59 

Levies for Private Purposes. — Where, however, a tax is 
avowedly laid for a private purpose, it is illegal and void. 
The following are illustrations of taxes for private pur- 
poses. A tax levied to aid private parties or corporations 
to establish themselves in business as manufacturers ; 1 a 
tax the proceeds of which are to be loaned out to individ- 
uals who have suffered from a great fire ; 2 a tax to supply 
with provisions and seed such farmers as have lost their 
crops ; 3 a tax to build a dam which at discretion is to be 
devoted to private purposes ; 4 a tax to refund moneys to 
individuals which they have paid to relieve themselves 
from an impending military draft; 5 and so on. In any 
one of these cases the public may be incidentally bene- 
fited, but the incidental benefit is only such as the public 
might receive from the industry and enterprise of individ- 
uals in their own affairs, and will not support exactions 
under the name of taxation. 

But, primarily, the determination what is a public pur- 
pose belongs to the legislature, and its action is subject to 
no review or restraint so long as it is not manifestly color- 
able. All cases of doubt must be solved in favor of the 
validity of legislative action, for the obvious reason that 
the question is legislative, and only becomes judicial when 
there is a plain excess of legislative authority. A court 
can only arrest the proceedings, and declare a levy void, 

1 Loan Association v. Topeka, 20 Wall. 655, 663 ; Cole v. La Grange, 
113 U. S. 1 ; Allen v. Jay, 60 Me. 124 ; Mather v. Ottawa, 114 111. 659. 

2 Lowell v. Boston, 111 Mass. 454; Feldman v. Charleston, 23 
S. C. 57. 

8 State v. Osawkee, 14 Ivans. 418. 

4 Attorney General v. Eau Claire, 37 Wis. 400. 

6 Tyson v. School Directors, 51 Penn. St. 9; Crowell v. Hopkinton, 
45 N. II. 9; Usher v. Colchester, 33 Conn. 567 ; Freeland v. Hastings, 
10 Allen (Mass.), 570; Miller v. Grandy, 18 Mich. 540. It has boon 
held that the legislature may constitutionally authorize cities to sub- 
scribe to the stock of railroads and to tax their citizens to pay such 
subscriptions. See Taylor v. Ypsilanti, 105 U. S. 60. But there aro 
authorities which dispute the soundness of this ruling. On this sub* 
Ject see Cooley, Const. Lim., 6th ed., 264, 273. 



60 CONSTITUTIONAL LAW. 

when the absence of public interest in the purpose for 
which the funds are to be raised is so clear and palpable 
as to be perceptible to any mind at first blush. 1 

But sometimes the public purpose is clear, though the 
immediate benefit is private and individual. For example, 
the government promises and pays bounties and pensions ; 
but in .every case the promise or payment is made on a 
consideration of some advantage or service given or ren- 
dered, or to be given or rendered, to the public, which is 
supposed to be an equivalent ; and the law for the pay- 
ment has in view only the public interest, and does not 
differ in principle or purpose from a law for the payment 
of salaries to public officers. The same is true where a 
State continues the payment of salaries to officers who 
have become superannuated in its service. The question 
whether they shall be paid is purely political, and resolves 
itself into this : whether the State will thereby probably 
secure better and more valuable service, and whether 
therefore it would be wise and politic for the State to give 
the seeming bounty. 2 

Where a law for the levy of a tax shows on its face the 
purpose to collect money from the people and appropriate 
it to some private object, the execution of the law may be 
resisted by those of whom the exaction is made, and the 
courts, if appealed to, will enjoin collection, or give rem- 
edy in damages if property is seized. But if a tax law 
on its face discloses no illegality, there can in general be 
no such remedy. Such is the case with the taxes levied 
tinder authority of Congress ; they are levied without any 
specification of particular purposes to which the collec- 
tions shall be devoted, and the fact that an intent exists 
to misapply some portion of the revenue produced cannot 

1 Broadhead v. Milwaukee, 19 Wis. 624, 652; Cheaney v. Hooser, 
9 B. Monr. (Ky.) 330, 345; Booth v. Woodbury, 32 Conn. 118, 128; 
Hammett v. Philadelphia, 65 Penn. St. 146 ; Tide Water Co. v. Coster, 
18 N. J. Eq. 518. 

2 Cooley on Taxation, 2d ed., 111. 



POWERS OF CONGRESS. 61 

be a ground of illegality in the tax itself. In cases arising 
in local government, an intended misappropriation may 
sometimes be enjoined ; but this could seldom or never 
happen in case of an intended or suspected misappropria- 
tion by a State or by the United States, neither of them 
being subject to the process of injunction. The remedies 
for such cases are therefore political, and can only be 
administered through the elections. 1 

Taxation of Government Agencies. — The power to tax, 
whether by the United States or by the States, is to be 
construed in the light of, and limited by, the fact, that 
the States and the Union are inseparable, and that the 
Constitution contemplates the perpetual maintenance of 
each with all its constitutional powers, unembarrassed and 
unimpaired by any action of the other. The taxing power 
of the Federal government does not therefore extend to the 
means or agencies through or by the employment of which 
the States perform their essential functions, since, if these 
were within its reach, they might be embarrassed, and per- 
haps wholly paralyzed, by the burdens it should impose. 
4 'That the power to tax involves the power to destroy; 
that the power to destroy may defeat and render useless 
the power to create ; that there is a plain repugnance in 
conferring on one government a power to control the con* 
stitutional measures of another, which other, in respect to 
those very measures, is declared to be supreme over that 
which exerts the control, — are propositions not to be 
denied." 2 It is true that taxation does not necessarily 
and unavoidably destroy, and that to carry it to the excess 
of destruction would be an abuse not to be anticipated ; 
but the very power would take from the States a portion 
of their intended liberty of independent action within 
the sphere of their powers, and would constitute to the 
State a perpetual danger of embarrassment and possible 
annihilation. The Constitution contemplates no sucli 

1 Cooley on Taxation, 2d ed., 701, 724, 823. 

3 McCulloeh v. Maryland, 4 Wheat. 316, 431, 



£2 CONSTITUTIONAL LAW. 

shackles upon State powers, and by implication forbids 
them. 

The United States, therefore, cannot tax a State mu- 
nicipal corporation or its resources, 1 or the salary of a 
State officer, 2 or the process of State courts, 3 or a railroad 
owned by a State, 4 and so on. 5 And on the other hand 
a State cannot tax the salary or emoluments of federal 
officers, 6 or the bonds or other securities issued under the 
power to borrow money on the credit of the United 
States, 7 or the revenue stamps or treasury notes issued 
by the United States, 8 or a bank created by the United 
States as its fiscal agent, 9 or the franchises of a corpora- 
tion created by the United States, except with the consent 
of Congress, 10 and so on. | But the sovereignty whose 
means or agencies of government would be affected by 
the tax might render it lawful by its assent, as has been 
done in some cases. The fact that the general govern- 
ment has chartered and brought into existence a corpora- 
tion with stipulations in the charter whereby the United 
States may have certain benefits from its use, does not 
exempt its property from State taxation, 11 but restrictions 

1 United States v. Railroad Co., 17 Wall. 322. 

2 The Collector v. Day, 11 Wall. 113. 

3 Warren v. Paul, 22 Ind. 276; Moore v. Quirk, 105 Mass. 49; 
Union Bank v. Hill, 3 Cold. (Tenn.) 325. 

4 Georgia v. Atkins, 1 Abb. U. S. 22. 

5 Ward v. Maryland, 12 WaU. 418, 427 ; State v. Gustin, 32 Ind. 1 ; 
Sayles v. Davis, 22 Wis. 225. 

6 Dobbins v. Commissioners, 16 Pet. 435. 

7 Weston v. Charleston, 2 Pet. 442 ; Bank Tax Case, 2 Wall. 200. 

8 Palfrey v. Boston, 101 Mass. 329; Montgomery v. Elston, 32 Ind. 
27 ; The Bank v. The Supervisors, 7 Wall. 26. But taxation cannot 
be evaded by putting taxable funds temporarily into United States 
notes just before the time for assessment. Shot well v. Moore, 129 
U. S. 590. 

9 McCullocb v. Maryland, 4 Wheat. 316, 368; Osborn v. Bank of 
United States, 9 Wheat. 738. See United States v. Railroad Co., 17 
Wall. 322. 

1° California v. Pacific R. R. Co., 127 U. S. 1. 

" Railroad Co. v. Peniston, 18 WaU. 5; Central Pacific Ry. Co. v. 



POWERS OF CONGRESS. 63 

to prevent unjust discriminations might be imposed, as 
has been done in the case of the existing national banks. 

Land of the United States lying within a State is not 
taxable by the State. 1 If such land has been bought, or 
taken up, by an individual, it is not subject to State taxa- 
tion so long as something remains to be done by the in- 
dividual to perfect his right to a patent from the United 
States. 2 If, however, his right to the patent is complete 
and the United States holds a naked legal title, the land 
is really private property, and may be taxed by the State. 3 

Direct Taxes. — It is provided in the Constitution that 
direct taxes shall be apportioned among the States accord- 
ing to their representative population. 4 What was meant 
by direct taxes in this provision is not entirely clear. 
Taxes are usually classed as direct when they are assessed 
upon the persons, property, business, income, &c. of those 
who are to pay them, and as indirect when they are levied 
on commodities before they reach the consumer, and are 
paid by those upon whom they ultimately fall, not as taxes, 
but as a part of the market price of the commodity. 5 But 
whether the term " direct taxes," as used in the Consti- 
tution, is to be given this meaning has been a matter of 
considerable discussion. In an early case, 6 it was decided 
that a tax upon carriages kept for use was not a direct 
tax. In this case Justice Chase said : " I am inclined to 
think, but of this I do not give a judicial opinion, that 
the direct taxes contemplated by the Constitution are 

California, 162 U. S. 91. A railroad corporation chartered by Con- 
gress may be subject to reasonable regulations by a State. TNagan v. 
Mercantile Trust Co., 154 U. S. 413. 

1 Van Brocklin v. Tennessee, 117 IT. S. 151. 

2 Railway Co. v. McShane, 22 Wall. 444 ; Wisconsin Cent! R. R 
Co. v. Trice Co., 133 U. S. 496. 

3 Deffeback v. llawke, 115 U. S. 392; Wisconsin Centr. R.B. T 
v. Price Co., 133 U. S. 496. 

4 Const., Art. I. § 2. See Art. I. § 9. el. 4. 
fi 1 Kent, 254; Story on Const., §§ 950-957. 
• Hyltou v. United States, 3 Dall. 171. 



64 CONSTITUTIONAL LAW. 

only two, to wit : a capitation or poll tax . . . and a tax 
on land." At a later time it was decided that a tax on 
the business of an insurance company was not a direct 
tax, 1 and the same ruling was made in the case of a tax 
on the circulation of banks, 2 a succession tax, 3 and a tax 
on private incomes. 4 In deciding all of these cases, the 
court gave great weight to the proposition that only capi- 
tation and land taxes are direct. But in 1895 the Supreme 
Court declared that a tax upon income from either perso- 
nal or real property is direct. 5 As the law now stands, 
therefore, the following are direct taxes : a capitation 
tax, a tax on real estate, on the income from real estate, 
on personal property, and on the income from personal 
property. 

Collection. — The power to tax includes the power to 
make use of all customary and usual means to enforce 
payment. But legislation must prescribe these means and 
give full directions for their employment, and it is essen- 
tial to the validity of the proceedings that the statute in 
all essential particulars shall be followed. 6 

Borrowing Money. — Congress is also empowered to 
borrow money on the credit of the United States. 7 This 
power may be exercised directly, in the usual mode, but 

1 Pacific Ins. Co. v. Soule, 7 Wall. 433. 

2 Veazie Bank v. Fenno, 8 Wall. 533. 

3 Scholey v. Rew, 23 Wall. 331. 

4 Springer v. United States, 102 U. S. 586 

5 In this case the court was divided and there was strong dissent. 
The scope of the decision is shown by the following words : " We have 
considered the act only in respect to a tax on income derived from real 
estate, and from invested personal property, and have not commented 
on so much of it as bears on gains or profits from business, privileges, 
or employments, in view of the instances in which taxation on business, 
privileges, or employments has assumed the guise of an excise, and 
been sustained as such." Pollock v. Farmers' Loan and Trust Co., 
158 U. S. 601, 635. 

6 Stead v. Course, 4 Cranch, 403 ; Williams v. Peyton, 4 Wheat. 77 j 
Parker v. Overman, 18 How. 137. 

7 Const., Art. I. § 8, cl. 2. 



POWERS OF CONGRESS. 65 

the indirect method, of issuing government obligations for 
debts or services, is equally admissible. And all such ob- 
ligations are excepted from the State power to tax, since 
otherwise they might be so burdened with taxation as to 
render it impossible for the government to negotiate them 
at all. 1 

Public Faith and the Public Debt. — In the Constitu- 
tion it was declared that " all debts contracted and engage- 
ments entered into before the adoption of this Constitution 
shall be as valid against the United States under this Con- 
stitution as under the Confederation." 2 This was perhaps 
intended merely as a solemn assurance to public creditors 
and the world that the public faith should be inviolably 
kept by the United States under its changed government ; 
but it might have had a special significance and impor- 
tance had one or more of the States failed to adopt the 
Constitution. In that event, although the general rule 
would apply that a public corporation remains liable for 
pre-existing debts notwithstanding the changes -in its or- 
ganization, or in its corporators, and notwithstanding any 
loss of territory, yet it would have been easy to raise 
cavils concerning it, had some States escaped the debt by 
rejecting the Union. It was therefore as politic as it was 
just to pledge the United States to the payment of the 
whole debt, that no one might be encouraged to raise ques- 
tions respecting it afterwards. A like pledge was made 
in one of the amendments adopted after the close of the 
great civil war. It was then declared that "the validity 
of the public debt of the United States, authorized by law, 
including debts incurred for payment of pensions and boun- 
ties for services in suppressing insurrection or rebellion, 
shall not be questioned. But neither the United States 
nor any State shall assume or pay any debt or obligation 

1 Tho Banks v. Tho Mayor, 7 Wall. 16 j The Bank V. The Super 
visors, 7 Wall. 26. So of the premium on United states bonds 
People v. Com'r, 90 N. Y. 63. 

3 Const., Art. VI. cL 1. 

I 



86 CONSTITUTIONAL LAW. 

incurred in aid of insurrection or rebellion against the 
United States, or any claim for loss or emancipation of any 
slave ; but all such debts, obligations, and claims shall be 
held illegal and void." x The prohibitory portion of this 
provision was as unnecessary as the other for the purpose 
of settling any principle. No nation can be expected to, 
or does, make compensation for losses occasioned in war 
to its enemies. It might be said, however, that slave 
property of loyal and disloyal alike was destroyed by the 
government under circumstances rendering the destruction 
equivalent to an appropriation, and that the equitable 
claim to compensation was such as should be respected. 
But the prevailing view was that slavery was itself the 
cause of the civil war, with all its losses and calamities, 
and that its destruction was the destruction of a public 
enemy, and no just claim could arise from it. The ex- 
ample was therefore followed which was set at the Revo- 
lution, of making no compensation for the incidental losses 
of the war ; and this was made impossible by expressly 
prohibiting it. 

Section II. — Regulation of Commerce. 

TJie Constitution. — It is further provided by the Con- 
stitution, that Congress shall have power " to regulate 
commerce with foreign nations, and among the several 
States, and with the Indian tribes." 2 

Commerce. — The word commerce is not limited tic 
traffic ; to buying and selling and the exchange of com- 
modities ; but it comprehends navigation also, and all 
that is included in commercial intercourse between nations 
and parts of nations in all its branches, and is regulated 
by prescribing rules for carrying on that intercourse. 8 

1 Amendment 14. 

2 Const., Art. I. § 8, cl. 3. 

8 Gibbons v. Ogden, 9 Wheat. 1, 189 ; Passenger Cases, 7 How. 283; 
Welton v. Missouri, 91 U. S. 275; Henderson v. New York, 92 U. & 



POWEES OF CONGRESS. 67 

Navigation and intercourse, therefore, upon the natural 
highways by water is under the regulating control of Con- 
gress, wherever it is not exclusively limited to a single 
State. 1 So are transportation and intercourse by railroad 
between different parts of the country; and it is there- 
fore competent for Congress to provide that all railroad 
companies may carry passengers, mails, and property over 
their roads, boats, bridges, and ferries, on their way from 
one State to another, and receive compensation therefor, 
and may connect with other roads so as to form continu- 
ous lines for the transportation of the same to their places 
of destination; also to provide for the construction of 
bridges over navigable rivers between States, and to pro- 
vide that the bridges when constructed shall be free for 
the crossing of all trains of railroads terminating on the 
sides of the rivers respectively. 2 Congress may also regu- 
late communication by telegraph between the States, and 
where a State has given exclusive privileges which would 
preclude free intercourse, it may under this power and 
the power to establish post-offices and post-roads, provide 
for the construction of competing lines. These powers 
"keep pace with the progress of the country, and adapt 
themselves to the new developments of times and circum- 
stances. They extend from the horse with its rider to 
the stage-coach, from the sailing vessel to the steamboat, 
from the coach and the steamboat to the railroad, and 
from the railroad to the telegraph, as these new agencies 
are successively brought into use to meet the demands of 
increasing population and wealth. They were intended 
for the government of the business to which they relate, 
at all times and under all circumstances. As they were 
intrusted to the general government for the good of the 
nation, it is not only the right but the duty of Congress 

259; Pensacola Tel. Co. v. West, &c. Tel. Co., 96 U. S. 1,9; Robbini 
v. Shelby Tax. Dist., 120 U. S. 489. 

1 Gibbons v. Ogden, 9 Wheat. 1. 

■ Railroad Co. v. Richmond, 19 Wall. 584. 



68 CONSTITUTIONAL LAW. 

to see to it that intercourse among the States and the 
transmission of intelligence are not obstructed or un- 
necessarily encumbered by State legislation." 1 

Commerce between States. — To constitute commerce 
between States it is essential that it be not confined to 
one State exclusively, but concern more than one. 2 The 
ordinary trade of a State, the local buying, selling, and 
exchange, the making of contracts and conveyances, the 
rules for the regulation of local travel and communication, 
and all the infinite variety of matters which are of local 
interest exclusively, are left wholly to the regulation of 
State law. The commerce of a State which Congress may 
control must in some stage of its progress be extra-terri- 
torial. It can never include transactions wholly internal, 
between citizens wholly of the same community, or extend 
to a polity and laws whose ends and purposes and opera- 
tions are restricted to the territory and soil and jurisdic- 
tion of such community. Nor can it be properly concluded, 
because the products of domestic enterprise in agriculture 
or manufactures or in the arts may ultimately become the 
subjects of commerce outside the State, that the control 
of the means or the encouragements by which enterprise 
is fostered and protected is implied in this important 
grant of power. 3 The Federal government may have the 

1 Pensacola Tel. Co. v. Western, &c. Tel. Co., 96 U. S. 1, 9. 

2 Gibbons v. Ogden, 9 Wheat. 1, 189 ; The Passaic Bridges, 3 Wall. 
782. But a tax levied by a State on receipts from transportation car- 
ried on by a railroad between different points in the same State is not 
an interference with interstate commerce, even though in the course 
of transportation the property passes without the limits of the State 
and back again. Lehigh Valley R. R. Co. v. Pennsylvania, 145 U. S. 
192. Compare Lord v. Steamship Co., 102 U. S. 541. 

3 Veazie v. Moor, 14 How. 568, 574. It is well said in this case 
that " a pretension as far-reaching as this would extend to contracts 
between citizen and citizen of the same State, would control the pur- 
suits of the planter, the grazier, the manufacturer, the mechanic, the 
immense operations of the collieries, the mines, and furnaces or the 
country; for there is not one of these avocations the results of which 
may not became the subjects of foreign commerce, and be bornv 



POWERS OF CONGRESS. 69 

power to suppress monopolies when they operate to con- 
trol interstate traffic ; but a combination to control the 
production of an article only indirectly affects interstate 
commerce, and is not a subject for federal legislation. 1 
Congress cannot legislate for the regulation of commerce 
on a stream whose navigable waters are exclusively within 
the limits of a State, and which does not, by connecting 
with other waters, form a continuous highway over which 
commerce is or may be carried on with other States or 
with foreign countries. 2 It is otherwise, however, with a 
river which, though wholly within a State, forms, with the 
lake into which it runs, a highway for interstate com- 
merce ; and the regulations may extend to the vehicles 
of commerce which are used upon the river exclusively, 
but deliver merchandise upon the vessels navigating the 
lake. 3 

Commerce with Indian Tribes. — It is immaterial to the 
power of Congress over commerce with an Indian tribe 
that the tribe resides within the limits of a State. 4 The 
power of regulation may extend to the prohibition of all 
intercourse except that carried on under license, 5 and at 
the discretion of Congress the prohibition may no doubt 
be made total. 

either by turnpikes, canals, or railroads, from point to point within 
the several States, towards an ultimate destination." 

1 United States v. E. C. Knight Co., 156 U. S. 1. In this case the 
court interpreted the anti-trust law of 1890. The question was whether 
the law was directed against such a combination as the sugar trust, and 
whether under it persons resident in Pennsylvania could be enjoined 
from making a combination with a New Jersey corporation. The 
court held that, in view of the general principles of interstate com- 
merce law, the statute in question was not to be so interpreted. 

2 Vcazie v. Moor, 14 How. 568. 

8 The Daniel Ball, U> Wall. 557 j Withers r. Buckley, 20 How. S4; 
The Bright Star, 1 Woolw. 266 j The Montello, 2 Wall. 430. 

♦United states r. llolli.lav, 3 Wall. 407; Worcester v. Georgia, 
6 Pet. 515; Johnson v. Mcintosh, 8 Wheat, 543 j Jackson v. GrOOdeU 
W Johns. (N. V.) 188. 

6 United States v. Cisna, I Mckean, 254, 



70 CONSTITUTIONAL LAW. 

Embargo. — At one notable period in the history of the 
country it was deemed wise to lay an embargo upon all 
commerce with Great Britain and France, as a means of 
obtaining redress against unfriendly action on their part, 
under which the commerce of the country was being 
seriously crippled. The embargo act was contested as 
unconstitutional. It was said that it was not a regulation 
of commerce, but a total destruction of commerce, and 
therefore not warranted by the power now under consider- 
ation. The act was nevertheless sustained in the District 
Courts. 1 The purpose was to protect and save commerce, 
not to destroy it. As an embargo is commonly intended 
to be hurtful to another nation, and is likely to be followed 
by hostilities if redress is not obtained, it would seem to 
be justified under the war power also. But the power 
thaf controls commerce must from the very nature of 
things include the power to restrict and limit, — to pro- 
hibit as to certain things, and to suspend altogether when 
for the time it seems wise. It is a sovereign power, and 
therefore knows no limit. 

Concurrent Power. — The right to regulate interstate 
commerce belongs to the national government, and the 
regulation of commerce entirely within the limits of a State 
is left to the State ; but the mere existence of this power 
in Congress does not necessarily exclude the States from 
all authority whatever which might affect the commerce 
falling within the control of Congress, provided no actual 
legislation of Congress is interfered with. Some regu- 
lations of minor importance it is usual to leave exclusively 
to the States; such, for example, as the regulation of 
pilots, and the policing of harbors into which foreign and 
interstate commerce is brought. 2 The State may also pass 

1 United States v. The William, 2 Am. Law Jour. 255 ; Wheeling 
Bridge Case, 18 How. 421, 439. 

a Cooley v. Wardens; &c, 12 How. 299 ; The James Gray v. The 
John Fraser, 21 How. 184; Steamship v. Joliffe, 2 Wall. 450. Bui 
the regulations must not discriminate between vessels from different 
(States, Spraigue v. Thompson, 118 U. S. 90. 



POWERS OF CONGRESS. 71 

quarantine laws for its own protection against the intro- 
duction of disease from other States or foreign countries, 1 
may require that all locomotive engineers running engines 
in the State, even though engaged in interstate trans- 
portation, may be examined for color blindness, 2 and, in 
general, may make many police regulations to prevent 
injury to -their citizens. 3 The power that controls the 
foreign and interstate commerce of the country must un- 
doubtedly have the authority to take these subjects under 
its control as part of its commercial regulations. But 
although such State regulations may affect interstate com- 
merce in some measure, if the regulations are local in their 
nature and adapted to the locality they will not be con- 
sidered void, unless they run counter to legislation that 
Congress has enacted. 

Power exclusive in National Government. — But, on 

the other hand, when State legislation is in its essence 

of necessity a regulation of interstate commerce, 

?refore of national importance, it is an encroachment 

lower of Congress over the subject, and is there - 

"-en though Congress may never have legislated 

upon \ -i *ect. 4 If the legislation is not merelj' of 

se ' «, 5 How. 504, 632; Railroad Co. v. Husen, 95 U. S. 
465 ; Morgan S. S. Co. v. Louisiana, 118 U. S. 455. An inspection law 
to be valid must not substantially hamper or burden the right to make 
or receive a shipment. Vance v. Vandercook Co., decided by U. S. 
Supreme Court, May 9, 1898. 

2 Smith v. Alabama, 124 U. S. 465. 

8 N. Y., N. H., & II. 11. R. v. N. Y., 165 U. S. 628. In this case 
ft statute of New York directing that passenger cars should not be 
■: by stoves, was held to be a proper police regulation, and valid 
ii. ■ nee, of Congressional action, even though it had to do with 

ears entering the State from another. " The mere grant of the power 
to regulate commerce . . . did not in itself and without legislation by 
Congress impair the authority of the States to establish such reasonable 
regulations as were appropriate for the protection of the health, the 
lives, and the safety of the people." See also West. Un. Tel Co, H 
dames, 162 U. S. 650 ; Hennington r. Georgia, 103 U. S. 299 ; Chicago, 
&c. Ry. v. Solan, 169 U. S. 133. 

* Welton v. Missouri, 91 U. S. 275. 



72 CONSTITUTIONAL LAW. 

local importance, but the subject with which it deals is 
national in its character or if it interferes with means and 
methods of communication that ought to be the same over 
the whole country, or if under the guise of protecting its 
citizens the State passes laws that are an interference with 
legitimate commerce, 1 such legislation is invalid even in 
the absence of Congressional regulation. 2 By refraining 
from action, Congress in effect adopts as its own regula- 
tions those which the common law, or the civil law where 
that prevails, has provided for the government of such 
business, and those > which the States, in the regulation of 
their domestic concerns, have established affecting com- 
merce, but not regulating it, within the meaning of the 
Constitution. In fact, Congressional legislation is only 
necessary to cure defects in existing laws as they are dis- 
covered, and to adapt such laws to new developments of 
trade. 3 Inaction by Congress is equivalent to a declara- 
tion that the commerce under its control shall remain free 
and untrammelled. 4 The fundamental principles here 

1 " While we unhesitatingly admit that a State may pass sanitary 
laws, and laws for the protection of life, liberty, health, or property 
within its borders, . . . while for the purpose of self-protection it may 
establish quarantine, and reasonable inspection laws, it may not in- 
terfere with transportation into or through the State, beyond what is 
absolutely necessary for its self-protection. It may not, under the 
cover of exerting its police powers, substantially prohibit or burden 
either foreign or interstate commerce." Strong, J., in Railroad Co. v. 
Husen, 95 U. S. 465, 472. 

2 Welton v. Missouri, 91 U. S. 275. 

3 Hall v. De Cuir, 95 U. S. 485, 490. 

4 Welton v. Missouri, 91 U. S. 275 ; Brown v. Houston, 114 U. S. 
622 ; Walling v. Michigan, 116 U. S. 446; Bobbins v. Shelby Taxing 
District, 120 U. S. 489. This subject is clearly discussed in an opinion 
by Fuller, C. J., in Leisy v. Hardin, 135 U. S. 100, 108 : " The power to 
regulate commerce among the States is a unit, but if particular subjects 
within its operation do not require the application of a general or 
tmif orm system, the States may legislate in regard to them with a view 
to local needs and circumstances until Congress otherwise directs. . . . 
Where the subject matter requires a uniform system as between the 
States, the power controlling it is vested exclusively in Congress." 



POWEKS OF CONGRESS. 73 

laid down may be better understood by the more explicit 
and detailed statements which are given in the following 
paragraphs. It is often a matter of considerable diffi- 
culty to determine whether a State statute is local in its 
nature or an actual regulation of interstate commerce 
as such, or imposes an unnecessary burden upon such 
commerce. 

( The right to navigate freely the public waters of the 
United States has always been recognized, and any legis- 
lation on the part of the State which would tend to re- 
strict or limit that right is necessarily void, while a local 
police regulation or inspection law would not be consid- 
ered beyond the power of the State. , The leading case is 
that of Gibbons v. Ogden, 1 in which Chief Justice Mar- 
shall laid down at length the general principles of the law 
of interstate commerce. The State of New York granted 
to Robert Fulton and his associates, in consideration of 
the valuable service rendered in bringing the steamboat 
into practical use, the exclusive right to navigate the 
waters of the State with vessels propelled by steam for 
a series of years. The act was held void so far as con- 
cerned waters which constituted highways of foreign and 
interstate commerce. 

The State has no right to levy a tax upon the occupa- 
tion or business of importing as such. No more impor- 
tant regulation can well be imposed than that of taxation, 

1 9 Wheat. 1. License laws passed by the States requiring the own- 
ers of boats using the public waters to be enrolled, and to pay Fees, and 
an act providing that vessel owners should, under a penalty for non- 
compliance, file statements with local authorities as to ownership of 
vessels, and other facts, have been declared void as in palpable conflict 
with laws passed by Congress. Sin not, r. Davenport, 22 How. 227," 
Moran v. New Orleans, 112 U.S. 69; Foster v. Davenport, 22 11< 
2 14. And a law providing that every vessel arriving in a port shouU 

pay five dollars to the master or warden of (lie port whether he per- 
formed service or not, was held not to be an inspection law, but a regu- 
lation of commerce. Steamship ( V. r. rort Wardens, 6 Wall. 31. iSefl 
also Foster r. Master, 94 (J. S. 24G. 



74 CONSTITUTIONAL LAW. 

and the taxation of an importer because of his business as 
an importer is manifestly a tax upon the business itself. 
This principle was laid down in the leading case of Brown 
v. Maryland, where an act of the State, requiring im- 
porters to take out a license and pay a license fee, was 
declared void, whether the law was considered as im- 
posing a tax or merely for the purpose of regulating the 
employment. 1 

f It is equally clear that a State cannot discriminate 
against goods that are introduced from other States by de- 
manding a license tax from those engaged in selling such 
goods while imposing no corresponding tax upon those 
dealing in the goods which are the products of the State ; 2 
and moreover a tax upon persons selling goods by sample 
is inoperative as to persons soliciting orders for a house 
without the State, even where there is no discrimination, 
because " interstate commerce cannot be taxed at all, 
even though the same amount should be laid on domestic 
commerce." 3 A State statute requiring every master of 
a vessel bringing passengers from other countries, and 
landing them within the limits of the State, to pay a cer- 
tain sum of money for every such passenger, is void, as a 
very evident interference with the freedom of commerce 
with foreign nations. 4 

1 Brown v. Maryland, 12 Wheat. 419, 437 ; Low v. Austin, 13 
Wall. 29. 

2 Welton v. Missouri, 91 U. S. 275; Walling v. Michigan, 116 U. S. 
446. 

3 Robbins v. Shelby Taxing District, 120 U. S. 489; Brennan v. 
Titusville, 153 U. S. 289. A license tax cannot be imposed on the 
agent of a foreign express company. Crutcher v. Kentucky. 141 U. S. 
47. Nor upon the agent of a railroad, situated in a distant State, who 
solicits travel over tbat road, though every railroad agent in the State 
is subject to a like tax. McCall v. California, 136 U. S. 1C4. And a 
non-resident railroad company whose road forms a part of a line of 
interstate traffic cannot be taxed for maintaining an office in further- 
ance of its business. Norfolk, &c. R. R. Co. v. Pennsylvania 13 3 U. S. 
114. 

4 Passenger Cases, 7 How. 283. And an act imposing a very bur- 



POWERS OF CONGRESS. 75 

A law imposing a stamp duty upon goods sent out of 
the State would be a palpable burden on interstate or for- 
eign traffic, 1 and likewise a tax imposed upon railroads 
for freight brought within the State or carried out of it. 2 
Although, as we shall see, a State may tax the property 
of a corporation within the State, even though it is en- 
gaged in interstate traffic and may indeed tax business 
that is carried on wholly within a State, a State cannot 
Levy a tax upon the gross receipts from the business of 
transportation between it and foreign countries or other 
States. 3 Such a tax is a burden on commerce, inasmuch 
as the fares and freights received for transportation are 
an essential ingredient of commerce. 4 

densome condition on the shipments with an alternative payment of a 
small sum of money is in effect to demand payment of that sum, and 
is void. Henderson v. Mayor, 92 U. S. 259. Followed in People v. 
Compagnie & Co., 107 U. S. 59. It is, however, entirely competent 
for the United States to levy a tax upon each person brought into the 
country. Head Money Cases, 112 U. S. 580. 

1 Almy v. California, 24 How. 169. On the other hand, the mere 
fact that property produced in a State is ready for shipment, and that 
the owner intends to ship it, will not exempt it from State taxation. 
Coe v. Errol, 116 U. S. 517. And under the police power a State can 
prohibit the exportation of game shot within its limits. Geer v. Con- 
necticut, 161 U. S. 519. And if liquor distilling is forbidden it cannot 
be manufactured solely because it is intended for export. Kidd v. 
Pearson, 128 U. S. 1. 

2 Case of Freight Tax, 15 Wall. 232. The same principle is applied 
to tax on telegraph messages. Telegraph Co. v. Texas, 105 U. S. 460; 
Lcloup v. Port of Mobile, 127 U. S. 640. 

3 Philadelphia S. S. Co. v. Pennsylvania, 122 U. S. 326; Fargo v. 
Michigan, 121 U. S. 230; State v. Woodruff P. C. Co., 114 Ind. 155; 
West. Un. Tel. Co. v. Alabama, 132 U. S. 472. 

4 Compare State tax on Railway Gross Receipts, 15 Wall. 284. In 
this case the court upheld an act imposing a tax upon gross receipts. 
The decision is seriously questioned in Phila. Steamship Co. v. Penn- 
sylvania, 122 U. S. 326. And if the decision is to be held good, it must 
be because, in this instance, the lax was not in reality levied on the re 
ceipts as such, but upon the franchise which the company received from 
the State, the amount of the tax being simply measured by the income 
of the road. 



?6 CONSTITUTIONAL LAW. 

A State cannot levy a tax upon the capital stock of a 
foreign corporation engaged in interstate commerce which 
does business within its limits ; such a tax being, in 
effect, either upon its right to use navigable public 
waters, or upon its property because engaged in inter- 
state commerce. 1 

The States in the exercise of the police power have 
often attempted to prevent the introduction within their 
limits of articles that were considered inimical to the pub- 
lic health or safety. The power of the State to pass such 
legislation, at least in the absence of conflicting Congres- 
sional legislation, cannot be denied ; but the Supreme Court 
has not admitted that the States can be the final judge of 
what would be injurious to the welfare of their citizens, 
for, if that principle were adopted, legitimate articles of 
commerce might be excluded from a State under the pre- 
tence that they were harmful, and thus interstate com- 
merce would be in a large measure subject to regulation 
and control according to the caprice or prejudice of the 
individual members of the Union. Moreover, a law so 
sweeping in its terms that wholesome as well as unwhole- 
some articles would be excluded would evidently be be- 
yond the competence of the State. A statute of Missouri 
prohibiting the driving or conveying of Texan, Mexican, 
or Indian cattle into it during certain seasons of the year 
was held by the Supreme Court invalid, as an interfer- 
ence with commerce, while the court asserted that animals 
actually suffering under infectious or contagious diseases 
might be excluded by the State. 2 Similarly, a law requir- 
ing the inspection before slaughter of all animals to be 

1 So held in Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 
where the court held void a law of Pennsylvania taxing the capital 
stock of a New Jersey ferry corporation which had leased a wharf in 
Pennsylvania at which it landed passengers. 

2 Kailroad Co. v. Husen, 95 U S. 465. Compare Kimmish v. Ball, 
129 U. S. 217, and see post, page 80. The carrier may be made liable 
for damage done as a result of bringing in cattle that spread disease. 
Missouri, Kansas, &c. Ry. v. Haber, 169 U. S. 613. 



POWERS OF CONGRESS. 77 

used as food prevents the introduction of sound meat 
killed in other States, and is invalid. 1 A State cannot 
forbid the bringing of liquor into it from another State, 
liquor being a legitimate and customary article of com- 
merce. 2 Nor can a State forbid the sale of liquor or 
other merchantable commodities in the original package 
by the person who brought them into the State, inasmuch 
as the right of importation necessarily includes the right 
of sale. Not until the original package has been broken, 
or the commodities have passed from the hands of the 
importer, do they become mingled with the mass of prop- 
erty in the State, and subject to the legislative power of 
the State. 3 

1 Minnesota v. Barber, 136 U. S. 313. So of a law forbidding tbe 
sale of meat more than one hundred miles from the place of slaughter, 
unless inspected there. Brimmer v. Rebman, 138 U. S. 78. So if flour 
from other States must be inspected, while domestic flour need not be. 
Voight v. Wright, 141 U. S. 62. 

2 Bowman v. Chicago, &c. Ry. Co., 125 U. S. 465. In this case the 
court quoted with approval the opinion of Justice Catron in the License 
Cases, 5 How. 504, 600 : " If from its nature, it [any article] does not 
belong to commerce, or if its condition is such . . . that it no longer 
belongs to commerce, or, in other words, is not a commercial article, 
then the State power may exclude its introduction. . . . That which does 
not belong to commerce is within the jurisdiction of the police power 
of the State." An act of Massachusetts forbidding the sale of oleo- 
margarine colored in imitation of butter was held good, even against a 
person who imported the oleomargarine from another State, and of- 
fered it for sale in the original package. Plumley v. Massachusetts, 
155 U.S. 461. But a statute of Pennsylvania forbidding the sale of 
oleomargarine, even in its pure and unadulterated state, was held invalid 
so far as it prohibited introduction from another State and sale in the 
original package. Schollenberger v. Pennsylvania [decided by Fed- 
eral Supreme Court, May 23, 1898]. The distinction is important. In 
the former, the article excluded was calculated to deceive the people ; 
in the latter, it was a legitimate article of commorce, and had been so 
recognized by Congress. See also Collins v. New Hampshire [decided 
by Federal Supremo Court, May 23, 1S98]. 

8 Leisy'w. Hardin, 135 U. S. 100; Brown v. Maryland, 12 "Wheat. 
419. Iu Bowman v. Chicago, &C. Ry. Co., 125 U. S. 4t'>f>, and in l.elsv 
v. Hardin, the court declared invalid a portion of an Iowa statute hav- 
ing for its purpose the exclusion of liquor from tho State or its sale 



tS CONSTITUTIONAL LAW. 

While it is within the power of the State, when Con- 
gress has not legislated on the subject, to pass reasonable 
inspection laws regulating, for the common well-being, the 
introduction of persons and property within its limits, 
it cannot impose needlessly burdensome conditions and 
restrictions. The commerce should be left free and un- 
trammelled save as needful inspection and ordinary police 
regulations may affect it. Therefore, an act requiring a 
State officer to satisfy himself whether a passenger is 
deaf, dumb, crippled, &c, and is likely to become a pub- 
lic charge, forbidding any such persons to land unless 
the master give a bond of indemnity to every city in the 
State from loss from such landing, is void. 1 

If each one of the States could regulate the charges 
of railroads engaged in interstate commerce and coming 
within their limits, the manifest result would be confusion 
and disorder, and to restore in large measure the con- 
within the State. To avoid the effect of this decision Congress almost 
immediately passed an act providing that all liquors transported into 
any State or remaining therein for use should, upon arrival in the State, 
be subject to its laws as though produced there, and should not be ex- 
empt therefrom by reason of being introduced therein in the original 
package. 26 Stat, at Large, 313. A question at once arose whether 
the State laws held void as to interstate traffic became operative by 
reason of this statute, or whether it was necessary to re-enact them. It 
was determined that they did not need re-enactment ; that the statute 
merely removed the impediment to their operation caused by the com- 
merce clause and the inaction of Congress. In re Rahrer, Petitioner, 
140 U. S. 545. A law of South Carolina, known as the State dispensary 
law, was held invalid in so far as it forbade private persons from bring- 
ing in for their own use liquor from other States. The court held that 
the State cannot under the Federal statute establish a system which, 
in effect, discriminates between interstate and domestic commerce in 
commodities to make and use which are admitted to be lawful. Scott 
v. Donald, 165 TJ. S. 58. See also Rhodes v. Iowa, 170 U. S. 412 ; 
Vance v. W. A. Vandercook Co., 170 U. S. 438. 

1 Chy Ling v. Freeman, 92 U. S. 275, where this legislation is char- 
acterized as " most extraordinary." It seems, however, to be within 
the power of the State to require from masters of vessels the names of 
passengers, as being a proper police regulation. New York v. Miln, 
11 Pet. 103. Compare Hex^rson r Mayor, 92 U. S. 259. 



POWERS OF COKGRESS. 79 

ditions that existed before the Constitution was adopted 
providing for general power in Congress to legislate on 
such subjects. This species of regulation is one which 
must be, if established at all, of a general and national 
character, and cannot be safely and wisely remitted to 
local legislation. 1 Any general regulation of the means 
and methods of interstate transportation, under circum- 
stances where uniformity should prevail, or where the 
subject is a matter of national concern, is manifestly 
beyond the power of the State. 2 

Power of the State. — The regulation of the internal 
commerce and police of the State is with equal exclusive- 
ness left to the State, so far as its rules will operate only 
within its own limits, even though indirectly foreign and 
interstate commerce may be affected by it. 3 The power 
of the States to protect the lives, health, and property of 
their citizens, and to preserve good order and public 
morals, is a power originally and always belonging to the 
States, and not surrendered by them to the general gov- 
ernment. 4 Therefore a law of Congress which undertakes 
to regulate the sale of an article within a State, and to 
impose penalties for preparing or offering for sale or selling 
it, except after it has been subjected to a prescribed test 
as a protection against explosions, is inoperative within 

1 Wabash Ry. Co, v. Illinois, 118 U. S. 557. In this case a statute 
of Illinois forbidding a greater charge by railroads for a shorter than 
a longer haul of freight in the same direction was held to have no ap- 
plication to freight taken up within the State and carried outside of it. 
See also Covington Bridge Co. v. Kentucky, 154 U. S. 204. 

2 Hall v. PeCuir, 95 U. S. 485. In this case a statute of Louisiana 
compelling all carriers of passengers to provide equal and impartial 
accommodations to those applying for carriage, irrespective of race, 
color, &c., was declared invalid so far as it applied to vessels transport- 
ing passengers from other States. The commerce upon the Mississippi, 
said the court, is immense, '* and its regulation clearly a matter of 
national concern." 

8 Pervear v. Commonwealth, 5 Wall. 475 ; Sherlock v. Allen, 93 
U. S. 99. 

* United States v. E. C. Knight Co., 156 U. S. 1. 



80 CONSTITUTIONAL LAW. 

State limits. 1 A State law granting to a State corporation 
the exclusive right for a term of years to control the 
slaughtering of cattle in and near to one of its cities, 
and requiring that all cattle and other animals intended for 
sale or slaughter in that district shall be brought to the 
yards and slaughter-houses of the corporation, and author- 
izing the corporation to exact certain prescribed fees for 
the use of its wharves, and for each animal landed or 
slaughtered, may be maintained as a State regulation of 
police. 2 So the regulation of the sale of intoxicating 
drinks within a State belongs to the State itself, and it 
may require the taking out of a license as a condition to 
the dealing in intoxicating drinks, whether of home or 
foreign production, or may prohibit the sale of such 
drinks as a beverage, including those imported after they 
have passed from the hands of the importer and become a 
part of the general merchandise of the State. 3 So it is 
competent to require railroad companies to advertise 
annually, and adhere through the year to a tariff of fares. 4 
It may provide for separate, if equal, accommodation in 
public conveyances within it of white and colored per- 
sons. 5 It may make any person who has Texas cattle, 
which have not wintered north of a certain line, liable for 
damage done by them to other cattle through the commu- 
nication of disease. 6 

The citizens of one State cannot be taxed by another 
for a license or privilege to carry on interstate or foreign 
commerce ; 7 but a State may tax personal property, 

i United States v. DeWitt, 9 Wall. 41. 

2 Slaughter House Cases, 16 Wall. 36. See also Pittsburg, &c. 
Coal Co. v. Louisiana, 156 U. S. 590. 

3 License Cases, 5 How. 504 ; License Tax Cases, 5 Wall. 462. 

4 Railroad Co. v. Fuller, 17 Wall. 560. 

5 Louisville, &c. R.y. Co. v. Mississippi, 133 U. S. 587 ; Plessy v. 
Ferguson, 163 U. S. 537. 

6 Kimmish v. Ball, 129 U. S. 217. 

i Moran v. New Orleans, 112 U. S. 69; Pickard v. Pullman Car 
Co., 117 U. S. 34; Bobbins v. Shelby Taxing District, 120 U. S. 489. 



POWERS OF CONGRESS. 81 

employed in interstate commerce, like other personal 
property within its jurisdiction, 1 and may provide in 
various methods for discovering the actual value of such 
property. A statute of Ohio provided for the taxation 
of the property of express, telegraph, and telephone com- 
panies, and directed that the board of assessors should 
be guided by the value of the property as determined 
by the entire capital stock, and by any other evidence 
that would enable the board to arrive at the true value 
of the property in Ohio in the proportion which such 
property bore to the entire property of such companies ; 
the statute was upheld as against the Adams Express 
Company, the court holding that the property of the 
company within the State formed a unit, the real value 
of which might be ascertained in the method prescribed 
in the statute, and that, as to companies engaged in in- 
terstate commerce, their property in the several States 
through which they pass may be valued as a unit for the 
purpose of taxation. 2 It has likewise been held in sev- 

1 Marye v. Baltimore & Ohio R. R., 127 U. S. 117 ; West. TJn. Tel. 
Co. v. Massachusetts, 125 U. S. 530; West. Un. Tel. Co. v. Taggart, 
163 U. S. 1. A statute of Peunsylvania imposed a tax on the capital 
stock of every railroad and car company, in the proportion which the 
number of miles operated by it within the State bore to the whole 
number everywhere. It was upheld as to the non-resident Pullman 
Car Company because it had within the State constantly engaged in its 
business, though mainly operated in interstate journeys, a certain num- 
ber of cars which thus acquired a situs there for taxation, the lax being 
in reality upon the cars as property. Pullman P. C. Co. v. Pennsyl- 
vania, 141 U. S. 18. There was a strong dissent in the case. The 
majority distinguished the tax from an occupation or license tax, or a 
tax upon right of transit, and applied the doctrine of the West. Un. 
Tel. Co. v. Massachusetts, 125 U. S. 530, where a tax upon fixed prop- 
erty was sustained. 

3 Adams Express Co. v. Ohio, 165 U. S. 194. There was strong 
dissent in this ease also. The statute was attacked on the ground that 
it provided for a tax on property without the limits of the State inas- 
much as it was not the horses and wagons and other tangible property 
of the company that was appraised and taxed, at their ordinary market 
value. But the court held that it was a tax upon property, and not 



82 CONSTITUTIONAL LAW. 

eral instances that, although a company is engaged in 
interstate as well as local commerce, if the subjects of 
taxation can be separated so that the part which arises 
from interstate commerce can be distinguished from that 
which arises from business wholly within the State, the 
State can collect a tax upon the business within its limits. 1 
A State has a perfect right to tax a trade, profession, 
or occupation of its citizens ; and where a resident citizen 
engages in general business, subject to a particular tax, 
the fact that for the time being the business chances to 
consist, in whole or in part, in negotiating sales, between 
residents and non-residents, of goods made in another 
State does not make such tax an imposition on interstate 
commerce. 2 Although, as we have seen when considering 
the limitations upon State power, a State cannot demand 
a license fee from citizens of other States selling goods by 
sample within its limits, 3 it can levy a tax or demand a 
license fee if the article offered for sale is in the possession 
of the seller, even if it is the product of another State. 4 
Moreover, goods which are the products of other States 
are not free from taxation within the State into which 
they may be brought, provided there is no discrimina- 
tion in favor of local commodities, and the property has 

unconstitutional. See also Pittsburgh, &c. Rv. Co. v. Backus, 154 
U. S. 421. 

1 Katterman v. West. Un. Tel. Co., 127 U. S. 411 ; Pacific Ex. Co. v. 
Seibert, 142 U. S. 339. In Postal Tel. Cable Co. v. Charleston, 153 U. S. 
692, the court held valid an ordinance of the city providing that tele- 
graph companies should pay a license fee of S500 for business done ex- 
clusively within the city of Charleston. But a tax upon the receipts of 
a company arising from messages from points within the State to points 
without, or from points without to points within, is invalid. West. Un. 
Tel. Co. v. Alabama, 132 U. S. 472 ; Leloup v. Port of Mobile, 127 
U. S. 640; Telegraph Co. v. Texas, 105 U. S. 460. 

2 Ficklen v. Shelby Taxing District, 145 U. S. 1. 

3 Robbins v. Shelby Co. Taxing District, 120 U. S. 489; Asher v. 
Texas, 128 U. S. 129; Brennan v. TitusviHe, 153 U. S. 289. 

4 Emert v. Missouri, 156 U. S. 296; Machine Co. v. Gage, 100 U. S- 
676. 



POWBES OF CONGRESS. 83 

become part of the general mass of property of the 
State. 1 Although a State cannot exclude from its lim' 
its, either directly or indirectly, a corporation engaged in 
interstate commerce, it may levy an excise tax for the 
privilege of exercising its franchise within the State, if 
the payment be not made a condition precedent to the 
right to carry on the business, but its enforcement left to 
the ordinary means devised for the collection of taxes, 
and it may make the amount of the tax depend upon the 
gross receipts of the business done within the State. 2 

Bridges, Dams, and Ferries. — It has been customary 
since tke beginning to leave with the States the control 
and management of bridges, dams, and ferries, on the 
ground that they are subjects of local importance deeply 
affecting the interests of the people, and properly subject 
to the local authority, which can better appreciate their 
necessity and better direct the manner in which they can 
be regulated »than a government at a distance. They 
may serve on the whole as aids to commerce 3 rather 
than obstructions. But Congress can interfere and su- 
persede the authority of the State when it seems neces- 
sary to do so for the regulation of interstate commerce. 4 

1 Brown v. Houston, 114 U. S. 622; Pittsburg, &c. Coal Co. v. 
Bates, 156 U. S. 577. 

2 Postal Tel. Cable Co. v. Adams, 155 U. S. 688. In Maine v. 
Grand Trunk Ey. Co., 142 U. S. 217, the court upheld a statute pro- 
viding that every railroad corporation should pay to the State treasurer 
an annual excise tax for the privilege of exercising its franchises, and 
that the amount of the tax should depend upon the gross receipts ; but 
that when a road was partly within and partly without a State the tax 
should be determined by the proportion of the gross receipts within the 
State, to be ascertained by finding the proportion which the mileage 
within the State bore to the total mileage. The court held that this 
was not a tax upon gross receipts of a company derived from interstate 
commerce. See also St. Louis v. Western Union Tel. Co., 148 D. S. 92. 

:{ Pound v. Turck, 95 U. S. 450; Kscanaba Co. v. Chicago. 107 
U. S. 678. 

4 Monongahela Nav. Co. r. United States, 14S U. S. 812; Wiscon- 
sin v. Duluth, 96 U. S. 379. In sonic of the decisions the court seem* 



84 CONSTITUTIONAL LAW. 

When, however, the national government condemns and 
takes possession of property that has been lawfully used 
under authority from the State, it must proceed subject 
to the limitations of the Fifth Amendment, and must 
make just compensation to the owners. 1 The States 
may establish ferries across navigable waters, and re- 
quire the owners of ferryboats to take out licenses and 
pay fees therefor. 2 Sometimes the State regulations of 
these navigable waters 3 go to the extent of establishing 
practical monopolies ; as in case of provision in the lum- 
ber regions of the country, under which rafting companies 
are empowered to take control of ail logs thrown into a 
public stream, and raft them to their destination, as their 
owners may direct. And the States may cause navigable 
streams within their limits to be improved, and impose 
tolls on those making use of them to defray the expense. 4 
How the highways of a State, whether on land or by 
water, shall be best improved for the public good, is a 
matter for State determination, subject always to the 
right of Congress to interpose when State action is 
deemed to encroach upon the navigation of a river as a 
means of interstate commerce. 5 

to intimate that the regulation of ferries belongs exclusively to the 
State, and is not one of those matters which Congress can at discretion 
take under its authority. This would in principle hardly seem to be 
tenable. See Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 217. 

1 Monongahela Nav. Co. v. United States, 148 U. S. 312. 

2 United States v. The James Morrison, Newb. Adm. 241 ; Conway 
v. Taylor, 1 Black, 603 ; Ferry Co. v. East St. Louis, 107 U. S. 365. 

3 As to what are navigable waters of the United States, see Wilson 
v. Blackbird Creek Marsh Co., 2 Pet. 245; The Daniel Ball 10 Wall. 
557 ; The Montello, 20 Wall. 430. 

4 Mobile v. Kimball, 102 U. S. 691 ; Huse v. Glover, 119 U. S. 543; 
Sands v. Manistee Imp. Co., 123 U. S. 288; Palmer v. Cuyahoga Co., 3 
McLean, 226. But a license fee, not charged as a toll or compensation 
for any specified improvement, but exacted for the use of the stream 
in interstate commerce, is an invalid exaction, even though the State 
may have expended money to improve the navigation of the stream. 
Harman v. Chicago, 147 U. S. 396. 

6 Congress has power to establish a corporation to build a bridge 



POWERS OF CONGRESS. 85 

A State may authorize the bridging of a river consti- 
tuting a part of the navigable waters of the Union, even 
though the bridge may to some extent be an impediment 
to commerce which is carried on upon the river under 
the protection of Federal law. In the absence of Federal 
regulation to the contrary, the necessity for the erection 
of such structures is generally left to the discretion of the 
local authority. " It must not be forgotten that bridges, 
which are connecting parts of turnpikes, streets, and rail- 
roads, are means of commercial transportation as well as 
navigable waters, and that the commerce which passes 
over a bridge may be much greater than would ever be 
transported on the water it obstructs. It is for the mu, 
nicipal power to weigh the considerations which belong 
to the subject, and to decide which shall be preferred, 
and how far either shall be made subservient to the 
other." 1 

between two States. Luxtoii v. North River Bridge Co., 153 U. S. 
525. An act of Congress providing that location and plans of a bridge 
over navigable waters shall be approved by the Secretary of War does 
not deprive the States of power to authorize bridges under this condi- 
tion. Lake Shore, &c. Ry. Co. v. Ohio, 165 U. S. 365. 

1 Swayne, J., in Oilman v. Philadelphia, 3 Wall. 713, 729. See also 
Escanaba Co. v. Chicago, 107 U. S. 678 ; Cardwell y. American Bridge 
Co., 113 U. S. 205; Hamilton v. Vicksburg, &c. R. R. Co., 119 U. S. 
280; Lake Shore, &c. Ry. Co. v. Ohio, 165 U. S. 365; Willamette 
Bridge Co. v. Hatch, 125 U. S. 1. 

" There must be a direct statute of the United States in order to 
bring within the scope of its laws . . . obstructions and nuisances in 
navigable streams within the States." Willamette Bridge Co. v. 
Hatch, 125 IT. S. 1, 8. "Until Congress intervenes in such cases . . . 
the power of the State is plenary." Hamilton v. Vicksburg, &c. R. R. 
Co., 119 U. S. 280, 281. Where a bridge is thrown across a river 
not altogether within the limits of a State, somewhat different ques- 
tions arise, and perhaps it is not entirely settled what principle would 
hold. In the Wheeling Bridge Case, 13 How. 518, the court held that 
such a bridge could be abated by a Federal court if its advantage to 
the general business of the country was not so great as to overbalance 
the inconvenience caused by it. But there were many circumstances 
in the case that affected the decision ; one that, as the court seemed to 
h»ld, Congress had legislated concerning tho free navigation of the 



86 CONSTITUTIONAL LAW. 

The* ordinance of 1787 for the government of the North* 
west Territory provided that all navigable waters of the 
Territory should be common highways and forever free. 
When a new State was admitted to the Union, formed 
from the Northwest Territory, the ordinance ceased to 
have any operative force in limiting its powers of legis- 
lation as compared with those possessed by the original 
States. 1 But on the admisson of some of the new States 
a clause with regard to free navigation was introduced 
into the Congressional act, and this may be held to 
be a new enactment by Congress regulating commerce. 2 
But it does not prevent the States from interfering with 
the navigation of rivers by the erection of bridges over 
them. 3 

State Duties on Imports and Exports. — Further to pre- 
clude interference with the control by Congress over com- 
merce, it is declared by the Constitution that no State shall, 
without the consent of Congress, lay any imposts or duties 
on imports or exports, except what may be absolutely 
necessary for executing its inspection laws. 4 The imports 
and exports here intended are imports from and exports to 
foreign countries only. 5 The clause has no reference to 

Ohio, and another that a State was a party. Iu the Willamette 
Bridge case, supra, the court held that the principles of interna- 
tional law were applied in the Wheeling case ; it was not, therefore, 
strictly an interpretation of the interstate commerce clause of the 
Constitution. 

1 Willamette Bridge Co. v. Hatch, 125 U. S. 1 ; Sands v. Manistee 
Imp. Co., 123 U. S. 288; Escanaba Co. v. Chicago, 107 U. S. 678. 

2 Pollard's Lessee v. Hagan, 3 How. 212. 

3 Willamette Bridge Co. v. Hatch, 125 U. S. 1 ; Escanaba Co. v. 
Chicago, 107 U. S. 678; Cardwell v. American Bridge Co., 113 U. S. 
205; Hamilton v. Vicksburg, &c. E. K. Co., 119 U. S. 280. Nor from 
charging reasonable tolls for use of improvements in them. Huse v. 
Glover, 119 U. S. 543; Sands v. Manistee Imp. Co., 123 U. S. 288. 
The word free refers to the imposition of duties, &c, not to physical 
obstructions. 

4 Const., Art. I. § 10, cl. 2. 

5 Brown v. Houston, 114 U. S. 622 ; Woodruff v. Parham, 8 Wall. 123. 



POWEKS OF CONGEESS. 87 

persons. 1 A State in the execution of its inspection laws 
may lay a reasonable charge upon goods produced in it 
which are to be sent beyond its borders, 2 but it is believed 
that a State cannot levy a tax upon property because of 
the intent of the owner to export it to another, or dis- 
criminate in taxation between articles intended for con- 
sumption within the State and those sold to be taken into 
another. 3 

Federal Duties on Exports. — On the other hand, Con- 
gress is forbidden to lay any tax or duty on articles ex- 
ported from any State. 4 A small fee for a stamp, required 
to be placed upon tobacco intended to be sent out of the 
State, is not a tax within this clause. 5 

Tonnage Duties. — The States are also forbidden, with- 
out the consent of Congress, to lay any duty of tonnage. 6 
It is, therefore, not competent to levy dues upon vessels 
measured by their capacity, 7 nor indeed any dues at all 
which are imposed upon the vessels as instruments of com- 
merce, or are levied for the mere privilege of trading to a 
port. 8 But owners of vessels may be taxed by the State 
for their interests in them as property, by the same stan- 
dards employed in other cases. 9 Wharfage dues are not 
taxes, and they may, therefore, be laid in proportion to 
tonnage. 10 

1 People v. Compagnie, &c., 107 U. S. 59. 

2 Turner v. Maryland, 107 U. S. 38. 

8 Jackson Iron Co. v. Auditor General, 32 Mich. 488. 

4 Const., Art. I. § 9, cl. 5. 

5 Pace v. Burgess, 92 U. S. 372. 

6 Const., Art. I. § 10, cl. 3. 

* Cannon v. New Orleans, 20 Wall. 577 ; State Tonnage Tax Case, 
12 Wall. 204 ; Inman Steamship Co. v. Tinker, 94 U. S. 238. 

8 Steamship Co. v. Port Wardens, 6 Wall. 31 ; Peete v. Morgan, 
19 Wall. 581 ; Transportation Co. v. Wheeling, 99 U. S. 273. 

9 Peete v. Morgan, 19 Wall. 581. Only, however, where they have 
their home situs. St. Louis v. Perry Co., 11 Wall. 4l ) 3. 

10 Packet Co. v. Keokuk, 95 U. S. 80; St Louis 0. Ferry Co., 11 
Wall. 423; Packet Co. y. Catlettsburg, 105 V. S. 559 J Transportation 
Co. v. Parkersbnrg, 107 U. S. 091. 



88 CONSTITUTIONAL LAW. 

Preferences. — An important restriction is imposed upon 
the power of Congress in the provision that ' ' no pref . 
erence shall be given by any regulation of commerce 
or revenue to the ports of one State over those of 
another; nor shall vessels bound to or from one State 
be obliged to enter, clear, or pay duties in another." 1 
The provision is plain, simple, and just, and requires no 
comment. 2 

Possession of Imported Goods. — Goods imported but 
not yet delivered to the importer are in the custody of the 
United States, and process from State courts will not reach 
them. They can only be delivered to the person entitled 
to receive them under the laws of Congress. 3 

Section III. — Naturalization. 

The Constitution. — Congress is further empowered " to 
establish an uniform rule of naturalization. " 4 Naturaliza- 
tion is the act by which the rights, privileges, and im- 
munities of citizenship are conferred upon a person born 
an alien. There is no doubt that, when Congress has pre- 
scribed a rule, its power is exclusive, since any regulation 
by a State, not in force in every other State, would break 
the rule of uniformity. 5 The States have, therefore, by 
their assent to this provision, made Congress the exclu- 
sive depositary of the power to confer citizenship. 6 

A citizen, in the full acceptation of that term, may be 
said to be a member of the civil state entitled to all its 
privileges. The principal differences in privilege between 

i Const., Art. I. § 9, cl. 6. 

2 It was somewhat considered in the Wheeling Bridge Case, 18 
How. 421. 

3 Harris v. Dennie, 3 Pet. 292. 

4 Const., Art. I. § 8, cl. 4. And see post, Ch. XIV. sec. 1. 

5 Chirac v. Chirac, 2 Wheat. 259 ; Houston v. Moore, 5 Wheat. 
1,48; Thurlow v. Massachusetts, 5 How. 504; Smith v. Turner, 7 
How. 283. 

6 United States v. Villato, 2 Dall. 370. 



POWERS OF CONGRESS. 89 

an alien and a citizen consist in these : the former when 
he resides in the country is there by sufferance merely ; he 
cannot own real estate therein, and he cannot exercise po- 
litical rights. But these differences do not always exist : 
the States of the Union recognize fully the right of aliens 
to reside within their limits without hindrance, and in 
many States they are permitted freely to hold, convey, and 
transmit to their descendants real estate. Some of the 
States also permit aliens, after a short residence therein, 
and after declaring their intention to become citizens, to 
exercise the elective franchise. When an alien is thus 
given the privilege permanently to reside within a State, 
and to hold property of all kinds therein, and to exerciso 
the privilege of suffrage, the distinction in right and privi- 
lege and immunity between him and a citizen is not very 
plain. Indeed, as the suffrage would seem peculiarly to 
belong to citizens, and as the voter for representatives 
in the State legislature may vote for representatives in 
Congress also, 1 it would seem that there might be some 
question whether a State could confer upon an alien this 
high privilege. It is a question, however, which has never 
been made. One privilege, at least, the State could not 
confer upon an alien. Without the power of naturaliza- 
tion she could not give him as a citizen a title to all those 
privileges and immunities of citizens of the several States 
which the Federal Constitution guarantees and secures. 2 

Section IV. — Bankruptcy. 

The Constitution. — Congress may also establish "uni- 
form laws on the subject of bankruptcy throughout the 
United States." 3 This is a power which Congress may 
or may not exercise, and, when it abstains from doing 
so, the States are at liberty to legislate on the subject. 
Nevertheless their legislation must yield to the uniform 

1 Const., Art. I. § 2, cl. 1. - Const., Art. IV. § 1, cl. 1. 

* Const, Art. I. § 8, cl. 4. 



90 CONSTITUTIONAL LAW. 

laws whenever Congress shall see fit to pass them. 1 The 
power of Congress extends to voluntary as well as invol- 
untary bankruptcy ; and though formerly merchants and 
traders alone were subjected to the bankrupt laws, it is 
competent for Congress to bring all persons within their 
purview. 2 

Exemptions. — A bankrupt law may recognize and give 
to those who become subject to its provisions the benefit 
of the exemption laws of the States in which they respect- 
ively reside, and the fact that these differ in liberality is 
not to be regarded as depriving the bankrupt law of the 
character of uniformity. 3 Indeed, this is a just and equal 
rule, since the bankrupt's debts are contracted on the 
understanding that he is entitled to the exemptions pro- 
vided by the laws of his own State, and creditors cannot 
complain when he is allowed them. 

Section V. — The Currency. 

Coining Money and regulating its Value. — Among the 
most important of the powers conferred upon Congress is 
that ' ' to coin money and regulate the value thereof and 
of foreign coin." 4 This power would seem to be made 
exclusive by the further provision that no State shall 
" coin money," or " make anything but gold and silver a 
tender in payment of debts." 5 The general purpose in- 

1 Sturges v. Crowninshield, 4 Wheat. 122 ; Ogden v. Saunders, 12 
Wheat. 213; Baldwin v. Hale, 1 Wall. 223 ; Ex parte Eames, 2 Story, 
322. Upon repeal of the Federal bankrupt law, the State law previ- 
ously passed may become operative. Butler v. Goreley, 146 U. S. 303. 

2 Be California Pac. B, B. Co., 3 Sawyer, 240 ; Be Silverman, 1 
Sawyer, 410; 2 Abb. U. S. 243. 

3 Be Smith, 2 Woods, 458 ; Be Affold's Estate, 1 6 Am. Law Beg. 
624. There are other decisions on the subject, and some of them are 
in conflict. See Be Deckert, 10 Bank. Beg. 1 ; Be Shipman, 14 Bank. 
Beg. 570. 

4 Const., Art. 1. § 8, cl. 5. 

5 Const., Art. I. § 10, cl. 1. Practically, the power is made exclu- 
sive, though doubtless the States might legislate on the subject of 



POWERS OF CONGRESS. 91 

tended to be accomplished by these provisions was, to 
confer upon Congress the power of general regulation of 
the currency of the country, with a view to uniformity. - 

To coin money is to stamp pieces of metal for use as a 
medium of exchange in commerce, according to fixed 
standards of value. When money is thus coined and 
valued by sovereign authority, and when by law no other 
standard exists, it would by force of these facts become 
a lawful tender; but where money is coined of two or 
more metals it is usual to restrict the legal tender quality 
of the baser metal to small sums, as has been done with 
silver, copper, and nickel coins in this country. 

Legal Tender Paper. — In 1872 it was decided that 
Congress has power to make treasury notes a legal tender 
in the payment of debts previously as well as subsequently 
contracted x It was not agreed from what clause or por- 
tion of the Constitution this power is derived ; and as the 
legal tender act was passed during the existence of a 
civil war which put the existence of the Union in peril, 
some jurists have been inclined to justify the exercise of 
the power as they would any other act made imperative 
by the extreme exigencies of war. In the law it is de- 
clared that " United States treasury notes shall be lawful 
money"; 2 as though the making them with the legal 
tender quality was the coining of money ; but there is 
nothing in the debates attending the making and adoption 
of the Constitution, or in contemporary history, which 

legal tender, if at any time the legislation of Congress should he 
found not fully to cover the subject. And possibly a State might es- 
tablish standards differing from those fixed by Congress, for the dis- 
charge of contracts subsequently made within the State. But when 
Congress alone can coin money and regulate its value, it is difficult to 
understand how this can he. 

1 Legal Tender Cases, 12 Wall. 457, overruling Hepburn v. Oris- 
wold, 8 Wall. 602. 

2 Rev. Stat. TJ. S. § 3588. See Trehileoek r. Wilson, 12 Wall. 687, 
695, per Field, J. ; and more particularly the opinion of Bradley, J, 
in Legal Tender Casos, 12 Wall. 554. 



92 COHSTITUTIONAL LAW. 

would lead to the belief that the phrase " to coin money " 
was understood in a broader sense than is above expressed. 

But a power whose justification rests upon necessity 
can never be restricted to any one period or exigency ; 
and from the nature of the justification it must rest in the 
discretion of Congress, to be exercised whenever in its 
opinion the need is suflSciently urgent. Accordingly, the 
act of 1878, adopted in time of peace, authorizing the 
issue of treasury notes and making them a legal tender, 
was sustained, irrespective of the war power. The court 
puts its decision upon the ground that " the power to 
make the notes of the government a legal tender in pay- 
ment of private debts "is " one of the powers belonging 
to sovereignty in other civilized nations," and that, as it 
is not expressly withheld by the Constitution, it is by 
necessary implication vested in Congress in connection 
with the powers over the currency expressly granted. 1 

Changiny Values. — Under the power to regulate, the 
legal value may be changed at discretion. As the relative 
values of the different metals change from time to time, it 
becomes necessary to employ this power with a view to 
uniformity in standards, since otherwise the coin of least 
intrinsic value in proportion to its legal rating would in 
time drive the other from circulation. Any considerable 
change in the legal standards for any other reason is not 
to be expected, and, as it would operate to change the 
value of all existing credits, would be tyrannical. 

Dues to the States. — The States, in the exercise of 
their own sovereignty, will determine for themselves in 
what currency they will collect their taxes, and the act 
making treasury notes a legal tender can have no applica- 
tion as between a State and those upon whom the State 
imposes pecuniary burdens for its own necessary pur- 
poses. 2 And private parties in their contracts may stipu- 
late in what currency they shall be discharged, and the 

1 Legal Tender Case, 110 U. S. 421. 

2 Lane Comity v. Oregon, 7 Wall. 71. 



POWERS OF CONGRESS. 93 

courts will enforce the stipulation. 1 And, on common law 
principles, a tender in whatever passes current as money 
in the business transactions of the day is a sufficient 
tender, if not objected to by the creditor at the time the 
tender is made. 2 

Section VI. — Bills of Credit. 

Prohibition. — The States are also prohibited to " emit 
bills of credit." This inhibition was in furtherance of the 
same general policy which took from the States the power 
to coin money and restricted their power over the legal 
tender. Previous to the Revolution, the Colonies from 
time to time had issued paper obligations, promising to 
pay to the holders certain definite sums of money, and 
had put these in circulation as money among the people. 
These were bills of credit, based on the credit of the Col- 
ony issuing them ; and they had had when issued an in- 
variable tendency to depreciation and to the dishonor of 
the public credit. The Constitutional Convention, and 
the people in adopting their work, agreed that the States 
should surrender the power to repeat this painful history. 
The prohibition, however, does not go so far as to pre- 
clude the State from chartering banks of issue ; for to 
" emit bills of credit " the State itself must put them out 
on its own credit. 

Definition. — * By bill of credit, then, is meant a bill 
issued by the State, involving the faith of the State, and 
designed to circulate as money on the credit of the State, 
in the ordinary uses of business. 3 And the bills of a bank 
chartered by the State are not bills of credit in this sense, 
even though the State is sole stockholder in the bank, 4 or 

1 Browuson v. Rodes, 7 Wall. 229 ; Butler v. Ilonvitz, 7 Wall. 2:>S ; 
Trebilcock v. Wilson, 12 Wall. 687. 

2 Warren v. Manis, 7 Johns. (N. Y.) 47f> ; Snow r. Perry, 9 Pick. 
(Mass.) 540; Wheeler v. KnaggS, 8 Ohio, U>9. 

8 Craig v. Missouri, 4 Pet. 410 ; Woodruff v. Trapnall, 10 llow. 109 
4 Briscoe v. Bank of Kentucky, 11 Bet. 257. 



94 CONSTITUTIONAL LAW. 

though the State has pledged its credit for their payment 
in case the bank shall fail to do so ; 1 nor are coupons of 
State bonds, though they are made receivable for taxes. 2 

Section VII. — Weights and Measures. 

Standards. — Congress is further empowered "to fix 
the standard of weights and measures." 3 When this 
power is exercised it is exclusive, or there would be no 
" standard." 

Section VIII. — Counterfeiting. 

Congress may also "provide for the punishment of 
counterfeiting the securities and current coin of the United 
States." 4 

" This power," it has been said, " would naturally flow 
as an incident from the antecedent powers to borrow 
money and regulate the coinage ; and, indeed, without it 
those powers would be without any adequate sanction." 5 
The United States, by necessary implication from its 
power to coin money, has power to punish the circulation 
of counterfeit money. 6 Nevertheless, the States may 
punish as offences against themselves counterfeiting and 
the circulation of counterfeited securities and coin. 7 

Section LX. — Post Offices and Post Roads. 

TJie Constitution. — Congress is further given power 
"to establish post offices and post roads." Every road 
within a State, including railroads, canals, turnpikes, and 

1 Darrington v. State Bank, 13 How. 12. 

2 Poindexter v. Greenhow, 114 U. S. 270. 

3 Const., Art. I. § 8, cl. 5. i Const., Art. I. § 8, cl. 6. 
6 Story on Const., § 1123. 

6 United States v. Marigold, 9 How. 560. 

7 Fox v. Ohio, 5 How. 41 0,433. See Moore v. Illinois, 14 How 13 
Cross v. North Carolina, 132 D. S. 131. 



LOWERS OF CONGRESS. 95 

navigable waters, existing or created within a State, be- 
comes a post road when by law or by the action of the 
post office department provision is made for the transpor- 
tation of the mail upon or over it. Whether by the power 
to establish post roads any more was intended than a 
power to designate or point out what roads shall be mail 
roads, and the right of way along them when so desig- 
nated, has always been and is still made a question. Many 
statesmen and jurists have contended that the power com- 
prehends the laying out and constructing any roads which 
Congress may deem proper and needful for the conveyance 
of the mails, and the keeping them in due repair for the 
purpose. 1 This last view has been acted upon by Congress 
in some instances. The power to establish post offices 
includes everything essential to a complete postal system 
under federal control and management, and the power to 
protect the same by providing for the punishment as 
crimes of such acts as would tend to embarrass or defeat 
the purpose had in view in their establishment. And 
whatever place is officially kept as a place of deposit of 
mailable matter is a post office, though it be merely a desk 
or a trunk or box carried about a house or from one build- 
ing to another. 2 

Section X. — Copyrights and Patents. 

The Constitution. — Congress is further empowered 
"to promote the progress of science and useful arts, by 
securing for limited times to authors and inventors 
the exclusive right to their respective writings and dis- 
coveries." 8 Under this power, exclusive copyrights are 

1 See 1 Kent, 208, and note; Story on Const., §§ 11:28-1150. and 
notes; Wheeling Bridge Case, 18 How. 421 ; Dickey r. Turnpike Co., 
7 Dana (Ky.), 113. 

2 United States v. Marselis, 2 Blatch. 108. As to excluding im- 
moral matter from the mails, see Ex parte Jackson, 96 U. S. 727; 
In re Rapier, 143 U. S. 110. 

8 Const., Art. I. § 8, cl. 8. 



96 CONSTITUTIONAL LAW. 

granted for a term of years to the authors, inventors, 
designers, or proprietors of books, maps, charts, pictures, 
prints, statues, models, etc., and exclusive rights to make, 
use, and vend new inventions. 1 Acts of Congress under- 
taking to secure exclusive rights in the use of registered 
trade-marks have recently been held void, as not being 
within this grant of power. 2 The same cases hold that 
Congress cannot pass such acts under its power to regu- 
late commerce with foreign nations and among the sev- 
eral States and with the Indian tribes ; at least if such 
laws are general in their operation, and not limited to the 
commerce over which Congress is given control. 

Common Law Rights. — An author has in the United 
States no exclusive property in a published work except 
under the Federal laws. 3 But the common law protects 
him against the unauthorized publication of his manu- 
scripts and letters. 4 

The Power Plenary. — The power to legislate on 
the subject of patents is plenary, and may be exercised 
in the passage of either general or special laws. 5 But 
such laws have no extra-territorial effect whatever. 6 
The States have no power to regulate or restrict the- 
sale of patent rights, 7 but they are not restrained from 

1 The United States cannot use a patented invention without the 
consent of the patentee or making suitable compensation. Belknap v. 
Schild, 161 U. S. 10. 

2 Trade Mark Cases, 100 U. S. 82. How far photographs may be 
copyrighted, see Lithograph Co. v. Sarony, 111 U. S. 53. 

3 Wheaton v. Peters, 8 Pet. 591. 

4 Wheaton v. Peters, 8 Pet. 591, 657; Bartlett v. Crittenden, 5 
McLean, 32 ; Pope v. Curl, 2 Atk. 342. 

5 Evans v. Eaton, Pet. C. C. 322 ; Bloomer v. Stolley, 5 McLean, 
158; Blanchard v. Sprague, 2 Story, 164; Blanchard's Factory v. 
Warner, 1 Blatch. 258. 

6 Brown v. Duchesne, 19 How. 183. 

7 Woollen v. Banker, 2 Flipp, 33 ; Cranson v. Smith, 37 Mich. 309 ; 
Hollida v. Hunt, 70 111. 109. But there are cases contra. Tod v. Wick, 
36 Ohio St. 370; Herdic v. Roessler, 109 N. Y. 127; New v. Walker, 
108 Ind. 365. 



POWERS OF CONGRESS. 97 

regulating under the police power the use of patented 

articles. 1 

Section XI. — Piracies, Felonies on the High Seas, etc. 

Punishment. — Congress is further empowered "to 
define and punish piracies and felonies committed on 
the high seas, and offences against the law of nations." 
Piracy is universally understood in the law of nations as 
robbery or a forcible depredation on the high seas, animo 
furandi. It is the same offence at sea with robbery on 
land, 2 and a statute for the punishment of piracy, "as 
defined by the law of nations," is sufficient without further 
definition. 3 But the manifest purpose of this provision is 
to empower Congress to provide for the punishment as 
crimes of all such infamous acts committed on the high 
seas as constitute offences against the United States or 
against all nations. 4 But robbery committed on a ship 
belonging to subjects of a foreign state, by one not a 
citizen of the United States, is a crime only against such 
foreign state, and not punishable in the courts of the 
United States. 5 Where an American citizen has discov- 
ered an unoccupied guano island, which the President 
under Congressional authority has recognized as part of 
the United States, Congress may ordain that crimes com- 
mitted there shall be considered as though committed on 
a domestic vessel on the high seas. 6 

1 Patterson v. Kentucky, 97 U. S. 501 ; State v. Telephone Co., 36 
Ohio St. 296. 

2 1 Kent, 183; 4 Bl. Com., 71-73. 

8 United States v. Smith, 5 Wheat. 153. See United States v. Brig 
Malek Ad hoi, 2 How. 210. 

4 1 Kent, 188. 

5 United States v. Palmer, 3 Wheat. 610; United States r. Kessler. 
Baldw. 15, 22. 

G Jones v. United States, 137 U. S. 202. The Supreme Court has 
recently held that the Great Lakes are high seas. United States r. 
Rodgers, 150 U. S. 249. And seo 26 Stat, at Large, 424, c. 874; 
1 Sup. Rev. Stat. c. 874, p. 799. 

7 



98 CONSTITUTIONAL LAW. 

Section XII. — War. 

TJie Constitution. — It is further provided that Con- 
gress shall have power " to declare war, to grant letters of 
marque and reprisal, and make rules concerning captures 
on land and water." 1 

Definition, — War is said to be " that state in which a 
nation prosecutes its right by force." 2 It may exist with- 
out being declared, through the hostile acts of a foreign 
power, or through armed insurrection, and may then be 
recognized and repelled by the President as commander-in- 
chief of the army and navy. 3 The power to grant letters 
of marque and reprisal is included in the power to declare 
war ; but there is a propriety in granting it specifically, 
since they are sometimes issued with a view to obtain 
redress for some national injury without resort to further 
hostile measures. ( Until rules are made concerning cap- 
tures and confiscations, no private citizen can enforce 
rights of forfeiture, either with or without judicial assist- 
ance. 4 ; But as a legitimate means of prosecuting war the 
property of a belligerent may be seized and confiscated, 
and disposed of absolutely at the will of the captor. 5 And 
this right exists in favor of the United States in respect 
to its citizens engaged in rebellion against its authority. 6 
So as a war measure the slaves of persons in rebellion 
may be given their freedom. 7 When war exists the gov- 
ernment possesses and may exercise all those extreme 
powers which any sovereignty can wield under the rules of 

i Const., Art. I. §8, cl. 11. 

2 The Prize Cases, 2 Black, 635, 666. 

3 The Prize Cases, 2 Black, 635, 668. 

4 Brown v. United States, 8 Cranch, 110. 

6 Miller v. United States, 11 Wall. 268; Tyler v. Defrees, 11 Wall. 
331. 

6 The Prize Cases, 2 Black, 635, 673; The Grape Shot, 9 Wall. 
129, 132. 

7 Slabach v. Cushman, 12 Fla. 472; Dorris v. Grace, 24 Ark. 326; 
Weaver v. Lapsley, 42 Ala. 601 ; Hall v. Keese, 31 Texas, 504. 



POWEKS OF CONGRESS. 99 

war recognized by the civilized world ; and among these 
is the power to acquire territory, either by conquest or by 
treaty, 1 to create military commissions for the trial of 
military and other offences in districts where the civil law 
is displaced by warlike operations, 2 and to establish pro- 
visional courts in conquered territory. 3 But there is and 
can be no power to displace the guaranties and protections 
of the Constitution where the civil courts are discharging 
their functions and can enforce them. 4 

Armies. — Congress may also " raise and support 
armies ; but no appropriation of money to that use shall 
be for a longer term than two years." 5 The purpose of 
this restriction is to put it out of the power of the execu- 
tive to keep on foot a standing army, when in the opinion 
of the legislature it is not needful. 6 Who shall compose 
these armies, and how they shall be raised, must be deter- 
mined by law. Minors may be enlisted without the con- 
sent of their parents or guardians when the law fails to 
require such consent. 7 Enlistment is not a voidable con- 
tract. It changes the status of the person enlisting, and 
a minor is not entitled to his discharge because he has 
falsely represented himself to be of full age. 8 All persons 
capable of performing military duty, irrespective of age 
or of previous exemptions, may be compelled to do so 
under laws for the purpose. 9 

1 American Ins. Co. v. Canter, 1 Pet. 511, 542. 

2 Ex parte Milligan, 4 Wall. 2. 

3 Jecker v. Montgomery, 13 How. 498; The Grape Shot, 9 Wall. 
129. 

4 Ex Parte Milligan, 4 Wall. 2. 
6 Const., Art. I. § 8, cl. 12. 

6 Story on Const., § 1188. The same end is accomplished in Great 
Britain by passing mutiny laws only from year to year. 

7 Ex parte Brown, 5 Cranch, C. C. 554; United States v. Bain- 
bridge, 1 Mason, 71. 

8 In re Morrisey, 137 U. S. 157. Sec also In re Grimlev, 137 
U. S. 147. 

y It was so hold in the Con federate States, where the question 
Would be the same. Ex parte Conpland, 26 Texas, 386; Barbel v. 



100 CONSTITUTIONAL LAW. 

Navy. — Congress may also ' ' provide and maintain a 
navy." 1 What has been said respecting armies applies 
equally here. The powers of enlistment and conscription 
are the same, but conscription must operate under pre- 
scribed and impartial rules : the impressment of seamen, 
formerly practised in England, is not admissible in this 
country. 2 

Military Law. — Congress may also ' ' make rules for 
the government and regulation of the land and naval 
forces." 8 These rules must not be inconsistent with the 
proper authority of the President as commander-in-chief 
of the army and navy, which, being conferred by the 
Constitution, cannot be taken away by Congress. 

Militia. — Congress may also ' ' provide for calling forth 
the militia, to execute the laws of the Union, suppress in- 
surrections, and repel invasions." 4 The militia consists 
of those persons who under the law are liable to perform 
military duty, and who are enrolled and officered so as to 
be ready for service when called upon ; and they are State 
forces until actually called into the service of the Union. 
Congress may confer upon the President the power to call 
them forth, and this makes him the exclusive judge when 
the exigency has arisen for the exercise of the authority, 
and renders one who refuses to obey the call liable to pun- 
ishment under military law. 5 The President may make 
his requisition directly upon the executive of the State, 
or upon the militia officers. 6 

Congress may also " provide for organizing, arming, and 
disciplining the militia, and for governing such part of 
them as may be employed in the service of the United 

Irwin, 34 Ga. 27 ; Ex parte Tate, 39 Ala. 254. See also Kneedlei 
v. Lane, 45 Pa. St. 238. 

1 Const., Art. I. § 8, cl. 13. 

2 Cooley, Const. Lim., 6th ed., 363. 

3 Const., Art. I. § 8, cl. 14. See In re Griner, 16 Wis. 423. 

4 Const., Art. I. § 8, cl. 15. 

6 Houston v. Moore, 5 Wheat. 1 ; Martin v. Mott, 12 Wheat. 19. 
• See cases cited in last note. 



POWERS OF CONGRESS. 101 

States, reserving to the States respectively the appointment 
of the officers, and the authority of training the militia 
according to the discipline prescribed by Congress." l But 
though the States have the appointment of the officers, 
the bodies of militia called into the service of the United 
States are subject not only to the orders of the President 
as commander-in-chief, but also to those of any officer out- 
ranking their own, who may, under the authority of the 
commander-in-chief, be placed over them. An army ob- 
tained by conscription is not the militia, though conscripted 
from it. 2 

State Power Subordinate. — The intent of the foregoing 
provisions is to render the federal government supreme in 
all that pertains to war, with subordinate authority in the 
States. This is made more apparent by a subsequent 
provision that no State shall enter into any treaty, alliance, 
or confederation, or grant letters of marque and reprisal ; 3 
and by still another, which declares that no State without 
the consent of Congress shall keep troops or ships of war 
in time of peace, enter into any agreement or compact 
with another State, or with a foreign power, or engage in 
war unless actually invaded, or in such imminent danger as 
will not admit of delay. 4 By troops here are meant a stand- 
ing force, in distinction from the militia, which the States 
are expected to enrol, officer, equip, and instruct. 5 The 
agreements and compacts which may be entered into with 
the consent of Congress differ from the treaties, alliances, 
and confederations which are absolutely forbidden, in this: 
that the latter are made for perpetuity or for a consider- 
able time, and generally have successive execution, while 
the former are made for temporary purposes, and are per- 
fected in their execution once for all. 6 But all agree- 

1 Const., Art. I. § 8, el. 10. 

2 See the discussion in K needier v. Lane, 45 Peon. St. 288. 

8 Const., Art. I. § 10, el. 1. « Const., Art. I. § 10, el. 3 

8 See Luther v. Borden, 7 How. 1. 

6 Holmes v. Jcunison, 14 Pet. 540, 572. 



i 



102 CONSTITUTIONAL LAW. 

ments are not prohibited ; there are many matters upon 
which the different States may agree, that can in no way 
concern the United States. The prohibition is directed 
against the formation of any combination tending to 
increase the political power of the State, or to encroach 
upon the supremacy of the United States. 1 A final agree- 
ment fixing the boundary between States is however plainly 
of such a nature as to require the consent of Congress. 1 
An attempt by a State to deliver a fugitive from justice 
to a foreign sovereignty, in response to a demand therefor, 
would be an attempt to perfect and perform an agreement, 
and is therefore unauthorized. 3 

Section XIII. — Ceded Districts. 

The Constitution. — Congress is further empowered " to 
exercise exclusive legislation in all cases whatsoever over 
such district, not exceeding ten miles square, as may by 
cession of particular States and the acceptance of Con- 
gress become the seat of the government of the United 
States, and to exercise like authority over all places 
purchased by the consent of the legislature of the State in 
which the same shall be, for the erection of forts, maga- 
zines, arsenals, dock-yards, and other needful buildings." 4 

District of Columbia. — The cession contemplated by 
this clause was afterwards made by the legislatures of 
Maryland and Virginia, and Congress, as the legislature 
of the Union, 5 assumed the exercise of exclusive legisla- 
tion over it, but creating municipal governments with 
limited powers. This exclusive legislation over people 
who have no voice in the selection of legislators is incon- 
sistent with the right of self-government, on the recogni- 

1 Virginia v. Tennessee, 148 U. S. 503, 518; Wharton v. Wise, 
J53 U. S. 155. 

2 Poole v. Fleeger, 1 1 Pet. 185 ; Virginia v. Tennessee, 148 U. S. 503- 

3 Holmes v. Jennison, 14 Pet. 540. 

4 Const., Art. I. § 8, cl. 17. 

* Cohens v. Virginia, 6 Wheat. 264. 424. 



POWERS OF CONGRESS. 103 

tion of which American institutions rest, and, like the 
control over territories, must be regarded as one of the 
necessary exceptions to which, in their application, such 
general principles are subject. 1 In respect to a portion 
of this territory Congress has relinquished its jurisdiction 
by retroceding it to Virginia, and for a time it gave to 
the remainder a territorial government. But the power in 
Congress thus to delegate its general legislative authority 
has been denied, with much apparent reason. 2 

Jurisdiction, when Exclusive? — The Constitution, as 
we have seen, provides for the exclusive jurisdiction in 
the United States, not only over the seat of government, 
but over other places purchased with the consent of the 
legislature of the State for the erection of needful build- 
ings. This power of exclusive legislation carries with it 
exclusive jurisdiction; 3 the full sovereign authority over 
such places passes under such circumstances into the 
hands of the national government. The State, therefore, 
cannot take cognizance of acts committed there, and the 
inhabitants of those places cease to be inhabitants of the 
State, and can no longer exercise any civil or political 
rights under the laws of the State. 4 But land within the 
limits of a State can be acquired for governmental pur- 
poses in other ways than by purchase with the consent of 
the legislature ; and if acquired in any other way, exclu- 
sive jurisdiction and legislative power do not pass to the 

1 Loughborough v. Blake, 5 Wheat. 317, .322. 

2 Roach v. Van Riswick, Mac Arthur and Mackey, 171. The Dis- 
trict of Columbia is properly not a sovereign community, but a mu- 
nicipal corporation. Metropolitan R. R. Co. v. District, 132 U. 8. 1. 
Rut it may in some sense be regarded as a State of the Union, if it is 
necessary so to hold in order to prevent defeating the provisions of a 
foreign treaty. Geofroy v. Riggs, 133 U. S. 258. 

8 United States v. Cornell, 2 Mason, 60. 

4 Commonwealth v. Clary, 8 Mass. 72; Sinks v. Reese, 19 Ohio St. 
306. Crimes committed in such a place are not punishable by the 
State laws, even though, in case of murder, the death ensues beyond 
tho limits of the place. State v. Kelly, 76 Me. 331 ; Kelly t\ United 
States, 27 Fed. Rep. 616. 



104 CONSTITUTIONAL LAW. 

United States. The property may be purchased without 
the consent of the legislature, may be taken under the 
power of eminent domain, 1 or may be part of territory 
originally belonging to the United States, and not ex- 
empted from the jurisdiction of the State at the time of 
the admission of the State wherein the property lies. In 
these cases the interest of the United States is that of an 
ordinary proprietor ; 2 but doubtless under any circum- 
stances the federal property, however acquired, would be 
free from any such interference and jurisdiction of the 
State as would destroy its effective use for federal pur- 
poses. 8 The State may also cede jurisdiction to the fed- 
eral government over any such place, and in doing so 
may make such restrictions or conditions as it may see 
fit, provided they are not inconsistent with the effective 
use of the property for the purposes for which it was 
acquired. 4 

Section XIV. — Treason. 

Punishment. — Congress is further empowered " to 
declare the punishment of treason ; but no attainder of 

1 Kohl y. United States, 91 U. S. 367. 

2 Fort Leavenworth R. R. Co. v. Lowe, 114 U. S. 525, 531. People 
v. Godfrey, 17 Johns. 225. " We are of the opinion," said the court in 
the latter case, " that the right of exclusive legislation within the terri- 
torial limits of any State can he acquired hy the United States only in 
the mode pointed out by the Constitution, by purchase, by consent of 
the legislature of the State." 

3 Fort Leavenworth R. R. Co. v. Lowe, 114 U. S. 525, 539. The 
admission of a Territory as a State does not deprive the Federal 
government of the poAver to legislate for the protection of its lands, 
although it may involve the exercise of what is ordinarily known as 
the police power. Canfield v. United States, 167 U. S. 518. 

4 Fort Leavenworth R. R. Co. v. Lowe, 114 U. S. 525; Benson v. 
United States, 146 U. S. 325; Palmer v. Barrett, 162 U. S. 399 ; Opin. 
Attorneys Gen., 16, 592. The student should notice that the right to 
acquire property without the consent of the State does not flow from 
the clause of the Constitution before referred to, but is a right incident 
to the general power and authority of the government, which cannot 
be made dependent on the good will of a State legislature. 



POWERS OF CONGRESS. 105 

treason shall work corruption of blood, or forfeiture, 
except during the life of the person attainted." 1 By this 
last clause the cruel feature of the old law, which punished 
the traitor in the persons of his descendants, was forever 
precluded. 2 

Section XV. — Non-enumerated and Implied Powers. 

General Powers. — Congress is further empowered " to 
make all laws which shall be necessary and proper for 
carrying into execution the foregoing powers, and all other 
powers vested by this Constitution in the government of the 
United States, or in any department or officer thereof." 3 
The import of the clause is, that Congress shall have all 
the incidental and instrumental powers necessary and 
proper to carry into execution all the express powers. 
It neither enlarges any power specifically given, nor is it 
a grant of any new power to Congress, but it is merely a 
declaration, for the removal of all uncertainty, that the 
means for carrying into execution those otherwise granted 
are included in the grant. 4 The grant of the principal 
must include the necessary and proper incidents without 
which the grant would be ineffectual. It would be as un- 
desirable as it would be impracticable to enumerate all the 
means by the use of which the powers expressly conferred 
shall be exercised, since what may be suitable and proper 
means at one period may be wholly unsuitable and inef- 
fectual at another period, under conditions which had not 
been anticipated, and thus the iron rule of limitation to 
means specified would defeat the grant itself. The clause 
above recited distinctly negatives any suggestion that 
so unwise and impracticable a restriction was intended. 

1 Const., Art. III. §3. See United States v. Greathouse, 9 Abb. 
U.S. .364; Bigelow v. Forrest, 9 Wall. 389; Miller v. United States. 
1 1 Wall. 268. 

- Forfeiture, except during the life of the person attainted, was 
abolished in Fjigland by Sta1 3 & 1 Wm. [V c 106. 

8 Const., Art. I, §8, cl. IS. •» Story on Const., § 1243. 



106 CONSTITUTIONAL LAW. 

Those who made the Constitution conferred upon tha 
government of their creation sovereign powers ; they 
prescribed for it a sphere of action, limited, indeed, as re- 
spects subjects and purposes, but within which it should 
move with supreme authority, untrammelled except by the 
restraints which were expressly imposed, or which were 
implied in the continued existence of the States and of 
free institutions. But there cannot be such a thing as a 
sovereign without a choice of the means by which to exer- 
cise sovereign powers. 

In any particular in which the powers of the United 
States are contemplated, the necessity for the exercise of 
incidental powers is apparent. Congress, as a means to 
the collection of its revenues, provides for the seizure, sale, 
or confiscation of property ; in its regulation of commerce 
builds light-houses and removes obstructions from harbors , 
in establishing post offices, prescribes the rates of postage, 
provides for the appointment of postmasters and other 
agents, for the free delivery of postal matter, and for the 
sale and payment of postal money orders, &c. But what- 
ever may be the power it exercises in these and other 
cases, it must provide against its being rendered nugatory, 
and its purpose thwarted, by enacting laws for the punish- 
ment of those who commit acts which tend to obstruct, 
defeat, or impair the force of their due execution, or who 
neglect duties essential to the accomplishment of the ends 
designed. 1 Without these and similar incidental powers, 
the government would be as completely without the meant 
of perpetuating its existence as was the Confederation itself. 

The necessity that shall justify the making of particular 
laws is not an absolute necessity, but Congress may make 
any law, not by the Constitution expressly or impliedly 
prohibited, which it shall deem conducive to the execu- 
tion of any express power. 2 It may therefore charter a 

1 United States v. Bevans, 3 Wheat. 336. 

2 Legal Tender Cases, 12 Wall. 457, 539; Martin v. Hunter, 1 
Wheat. 304. 



POWERS OF CONGRESS. 107 

national bank as a necessary and useful instrument in the 
fiscal operations of the government. 1 It may give a pref- 
erence to the demands of the United States in case of 
insolvent estates. 2 It may provide for the punishment of 
acts which interfere with, obstruct, or prevent navigation, 
though done on land, 3 and may prevent all obstruction to 
the freedom of interstate commerce or the transportation 
of the mails. 4 It may protect voters at federal elections 
from violence, corruption, and fraud ; 5 and may guard 
persons who make homestead entries of public land 
from dispossession by force or intimidation. 6 It may 
give its treasury notes the quality of legal tender, 7 and 
may forbid assessments for political purposes upon its 
employees. 8 It may dissolve a territorial corporation, 
which when the territory was organized was in existence 
de facto, and seize its property and apply it to the use 
of common schools. 9 And Congress is of necessity 
the exclusive judge of what is needful and proper, 
when the means chosen conduce to the end and are not 
forbidden. 10 

Internal Improvements. — How far Congress as an in- 
cident to powers expressly granted has a right to appro- 
priate money or public lands to what are called internal 

1 McCulloch v. Maryland, 4 Wheat. 316, 413; Osborn v. United 
States Rank, 9 Wheat. 738. 

2 United States v. Fisher, 2 Cranch, 358. 

3 United States v. Coombs, 12 Pet. 72. 

4 It may accomplish this by having persons arrested and tried 
before a jury, or by using the forces of the army and navy, or by invok- 
ing the power of the court to enjoin persons from such unlawful inter- 
ference. In re Debs, 158 U. S. 564. See also In re Quarles and Butler, 
158 U. S. 532 ; Logan v. United States, 144 U. S. 263. 

5 Ex parte Yarborough, 110 U. S. 651. 

6 United States y. Waddell, 112 U. S. 76. 

7 Legal Tender Case, 110 U. S. 421. 

8 United States y. Curtis, 106 V. S. 371. , 

9 Mormon Church y. United States, 136 U. S. 1. 

10 McCulloch v. Maryland, 4 Wheat. 316, 413. See Anderson e. 
Dunu, 6 Wheat. 204. 



108 CONSTITUTIONAL LAW. 

improvements within the States, has been the subject of 
earnest discussion, almost from the foundation of the gov- 
ernment, and is even now not authoritatively determined. 
It is for the most part conceded that such appropriations 
may be made for the improvement of the navigable waters 
which constitute highways of foreign and interstate com- 
merce, and the harbors which are important to such com- 
merce, and to build breakwaters, lighthouses, and piers ; 
but it is contended by some that Congress may also assist 
in the making or improvement of highways, railroads, and 
canals, existing or authorized under State authority. To 
some extent such assistance has been given in money, but 
to a much greater extent in lands, and the question of 
right, like that of protective duties, has always been 
treated as exclusively political. 1 

Alien and Sedition Laws. — Two noted instances of 
the exercise of implied powers in the early history of the 
country led to much earnest and excited discussion of 
the theory of the Constitution, and to bitter and danger- 
ous controversies respecting it. The first was in the Alien 
Law, so called, 2 which authorized the President to order 
out of the country such aliens as he should deem danger- 
ous to the peace and safety of the United States, or should 
have reasonable grounds to suspect to be concerned in any 
treasonable or secret machinations against the govern- 
ment, and imposed severe penalties for disobedience to 
the order. The other was in the Sedition Law, 3 which 
declared it to be a public crime, punishable with fine and 
imprisonment, for any persons unlawfully to combine and 
conspire together with intent to oppose any measure or 
measures of the United States, &c, or with such intent 
to counsel, advise, or attempt to procure any insurrec- 
tion, unlawful assembly, or combination, or to write, print, 
utter, or publish, or cause or procure to be written, &c, 
or wilfully to assist in writing, &c, any false, scandalous, 

1 Story on Const., ch. 26 and notes. 

2 Act of June 25 ; 1798. 3 Act of July 14, 1798. 



POWERS OF CONGRESS. 109 

and malicious writings against the government of the 
United States, or either house of Congress, or the Presi- 
dent, with intent to defame them, or to bring them into 
contempt or disrepute, or to excite against them the hatred 
of the people, or to stir up sedition, or to excite any un- 
lawful combination for opposing or resisting any law, or 
any lawful act of the President, or to resist, oppose, or 
defeat any such law or act, or to aid, encourage, or abet 
any hostile designs of foreign nations against the United 
States. 1 Prosecutions were had under this last law, and 
it was sustained by the judiciary, but the prosecutions had 
the effect to excite a violent public clamor throughout the 
country, and were held up to the people as attempts to 
stifle constitutional discussion, and to prolong the ascen- 
dency of the party in power, by holding the threat of 
punishment over the heads of those who would vigorously 
assail its conduct, measures, and purposes. 2 

Resolutions of '98. — These laws were the immediate 
incitement to the Kentucky and Virginia Resolutions of 
1798-99, passed by the legislatures of those States respect- 
ively. The Virginia Resolutions, after avowing a firm 
attachment to the Constitution, and a determination to 
support it, declared that the legislature "views the powers 
of the federal government as resulting from the compact 
to which the States are parties, as limited by the plain sense 
and intention of the instrument constituting that compact, 
as no further valid than they are authorized by the gran Is 
enumerated in that compact, and that, in case of a deliber- 

1 Story on Const., § 1293. 

2 The prosecutions under the Sedition Law are given in Wharton's 
State Trials. The right of the government to exclude aliens and the 
appropriate procedure are discussed at length in Fong Yue Ting r. 
United States, 149 U. S. 698; Leni Moon Sing r. United States. 158 
U. S. 538. The government through administrative officers may re- 
move aliens, and to that end may it seems detain and temporarily im 
prison; but an alien cannot be subjected to long imprisonment, or to 
infamous punishment, without a trial. Wong Wing v. United States, 
163 U S. 228. 



110 CONSTITUTIONAL LAW, 

ate, palpable, and dangerous exercise of other powers not 
granted by the said compact, the States, who are the parties 
thereto, have the right and are in duty bound to interpose 
for arresting the progress of the evil, and for maintaining 
within their respective limits the authorities, rights, and 
liberties appertaining to them." x Of the Kentucky Reso- 
lutions there were two sets, the first of which, after declar- 
ing that the Constitution was a compact between the States 
and the government founded by it, proceeded to assert 
that " this government, created by this compact, was not 
made the exclusive or final judge of the extent of the pow- 
ers delegated to itself, since that would have made its dis- 
cretion, and not the Constitution, the measure of its powers, 
but that, as in all other cases of compact among parties 
having no common judge, each party has an equal right to 
judge for itself as well of infractions as of the mode and 
measure of redress." 2 The second, passed in the follow* 
ing year, declared that a nullification by the States of all 
unauthorized acts done under color of the Constitution is 
the rightful remedy. 3 

The Alien and Sedition Laws were temporary, and soon 
expired, and it has long been settled that there must be 
and is within the federal government authority to decide 
finally upon the extent and scope of its powers. The 
judicial decisions to this effect are numerous, 4 and the 
practice of the other departments, and of the States also, 
is in accord with them. 

1 Elliott's Debates, iv. 528, where Madison's report on the Resolu- 
tions is also published. 

2 Elliott's Debates, iv. 540. 3 Elliott's Debates, iv. 544. 

4 Martin v. Hunter's Lessee, 1 Wheat. 304, 334; Cohens v. Vir- 
ginia, 6 Wheat. 264; Chisholm v. Georgia, 2 Dall. 419; Ableman v. 
Booth, 21 How. 506 ; Tarble's Case, 13 Wall. 397. There was always 
a dispute whether the " nullification " intended by the Kentucky and 
Virginia Resolutions was anything more than a resort to such means 
of redress as were admissible under the Constitution, and to an amend- 
ment of that instrument if needful. 



POWERS OF CONGRESS. Ill 

Section XVI. — Restrictions on the Powers of 

Congress. 

Implied Restrictions. — In the preceding chapter allu- 
sion has been made to certain restrictions on the powers 
of Congress, which are implied from the division of powers 
as between the nation and the States, and as between the 
several departments of the national government. \First, 
that it must not exercise the powers, or any portion there- 
of, conferred by the Constitution on the executive or the 
judiciary; and, second, that it must not encroach upon 
the sphere of sovereignty which by the Constitution is 
left in or assigned to the States. Some others will now 
be mentioned. J 

C 1. No legislative body can delegate to another depart- 
ment of the government, or to any other authority, the 
power, either generally or specially, to enact laws. The 
reason is found in the very existence of its own powers. 
This high prerogative has been intrusted to its own wis- 
dom, judgment, and patriotism, and not to those of other 
persons, and it will act ultra vires if it undertakes to 
delegate the trust, instead of executing it. 1 / Bat this 
principle does not preclude conferring local powers of gov- 
ernment upon the local authorities, according to the imme- 
morial practice of our race and country, 2 nor the giving to 
the Territories a general authority to legislate on their own 
affairs. It is competent also, and sometimes necessary 
to confer authority on the executive or the judiciary to 
determine in what cases a particular law shall be applied. 

1 Locke on Civil Government, § 142 ; Barto, v. Himrod, 8 N. Y. 483 ; 
Rice v. Foster, 4 Harr. 479; In re Rahrer, 140 U. S. 545; Cooler, 
Const. Lim., 6th ed., 137-146. 

2 Durach's Appeal, 62 Penn. St. 491 ; Mills v. Charleton, 29 Wis. 
415; People v. Kelsey, 34 Cal. 470; People v. IlurUmt, 24 Mich. 44; 
Cross v. Hopkins, 6 W. Va. 323 ; Stone v. Charlestown, 114 Mass. 214 ; 
and many cases collected in Cooley, Const. Lim., 6th ed., 227, and 137- 
146, where among other matters the validity of local option laws is 
discussed. 



112 CONSTITUTIONAL LAW. 

For example, the act of Congress suspending the privilege 
of the writ of habeas corpus during the late civil war did 
not declare a general suspension, — which would have 
been entirely needless, and therefore an act of tyranny, — 
but it empowered the President to exercise his judgment, 
and supersede the writ in particular cases, as he might 
deem the public interest to require. A similar discretion- 
ary power is conferred upon the President, or upon one 
of the heads of department, in many cases. 1 

2. No legislative body under its general authority can 
pass any act which shall limit or be derogatory to the 
authority of its successors. If one legislature could in 
any degree limit the power of its successors, the process 
might be repeated from time to time, until the State would 
be stripped of its legislative authority, and of the sover- 
eignty itself. It is for this reason that a State can pass 
no irrepealable law ; for an irrepealable law must neces- 
sarily remove something from the reach of subsequent 
legislation. 2 

3. Every legislative body is to make laws for the public 
good, and not for the benefit of individuals ; and it is to 
make them aided by the light of those general principles 
which lie at the foundation of representative institutions. 
Here, however, we touch the province of legislative dis- 
cretion. What is for the public good, and what is required 
by the principles underlying representative government, 
the legislature must decide under the responsibility of its 
members to their constituents. 

Express Restrictions. — Those express restrictions upon 

1 See Field v. Clark, 143 U. S. 649, where the court held good part 
of a tariff act empowering the President under certain conditions to 
suspend certain provisions. See also In re Kollock, 165 U. S. 526. To 
empower a commission to fix maximum railroad rates is not an un« 
constitutional delegation of power. Chicago, B. & Q. R. R. v. Jones. 
149 111. 361. 

2 1 Bl. Com., 90; Bloomer v. Stolley, 5 McLean, 161 ; Coolev, Const. 
Lim., 6th ed., 146-149 ; Illinois Central R. R. v. Illinois, 146 U. S. 
387, 460. 



POWEES OF CONGEESS. 11 B 

the powers of Congress which are intended for the protec- 
tion of personal rights and liberties, it will be more con- 
venient to refer to hereafter, in connection with other 
protections. The following are some which concern gen- 
eral policy. 

Slave Trade. — Congress was forbidden, though in ob- 
scure language, to prohibit the importation of slaves prior 
to the year 1808. 1 The forbidden power was exercised as 
soon as this time had expired. 

Titles, Presents, dc. — The granting of titles of nobility 
is prohibited. 2 Their inconsistency with republican insti- 
tutions, based upon perfect equality of rights, was so man- 
ifest as to render the prohibition an important security. 
It is also provided, that no person holding an office of 
profit or trust under the United States shall, without 
the consent of Congress, accept any present, emolument, 
office, or title of any kind whatever, from any king, 
prince, or foreign state. A wise jealousy of foreign 
influence in the affairs of government will amply justify 
this provision. 3 

l Const., Art. I. § 9, cl. 1. 2 Const, Art. I. § 9, cl. 8. 

3 Story on Court., § 1352. 



114 CONSTITUTIONAL LAW. 



CHAPTER V. 
THE POWERS OF THE EXECUTIVE. 

Commander-in-Chief. — The President is Commander- 
in-Chief of the army and navy of the United States, and of 
the militia of the several States when called into actual 
service. 1 This important power is confided to him to be 
exercised in his discretion, but it is expected to be exer- 
cised through the War Department, and not by taking 
command in the field, or by any personal direction of 
armies. 2 ^As commander, while war prevails the President 
has all the powers recognized by the laws and usages of 
war, but at all times he must be governed by law, and his 
orders which the law does not warrant will be no protec- 
tion to officers acting under them. 3 An example is wher<? 
he appoints an unlawful military commission, which pro- 
ceeds to try and punish offenders against the law. 4 The 
power to declare war being confided to the legislature, 
he has no power to originate it, but he may in advance 
of its declaration employ the army and navy to suppress 
insurrection or repel invasion. 5 ] 

The Cabinet. — The President may require the opinion 
in writing of the principal officer in each of the executive 
departments upon any subject relating to the duties of 

1 Const., Art. II. § 2. 

2 United States v. Eliason, 16 Pet. 291. 

3 Little v. Barreme, 2 C ranch, 170. 

4 Milligan v. Hovey, 3 Biss. 13. 

5 The Prize Cases, 2 Black, 635, 668. 



POWERS OF THE EXECUTIVE. 115 

their respective offices. 1 The Constitution is silent respect- 
ing the convening of these officers as a council; but 
custom sanctions it, and it is usual for the President to 
call them together and act upon their joint advice on all 
important matters coming within his cognizance. The 
heads of departments do not act independently of the 
President, except in such cases as the law may specially 
provide for, nor are they responsible to Congress ; but 
they are executive agents, and any official act done by 
any one of them is, in contemplation of law, done by the 
President himself, and the responsibility is upon him. 2 
The responsibility, however, is only political ; the Presi- 
dent cannot be called to account in prosecutions, civil or 
criminal, impeachment alone excepted. 3 In customary 
language the heads of department collectively are spoken 
of as the Cabinet; but a cabinet council, not created or 
required by the Constitution or by law, can only be an 
advisory body, which the President will convene or con- 
sult in his own discretion. 

Reprieves and Pardons. — The President has power to 
grant reprieves and pardons, for offences against the 
United States, except in cases of impeachment. 4 There 
are several ways in which this power may be exercised : — 
1. A pardon may be given to a person under conviction 
by name ; and this will take effect from its delivery, unless 
otherwise provided therein. 2. It may be given to one 
or more persons named, or to a class of persons by de- 
scription before conviction, and even before prosecution 
begun. Such a pardon is rather ih the nature of an 
amnesty or act of oblivion or forgiveness, blotting out the 

1 Const., Art. II. §2. These departments are created by law. and 
arc increased as the exigencies of the public service seem to require. 

2 Parker v. United States, 1 Pet. 293; Wilcox v. Jackson, LS Tot. 
498; United States y. Eliason, 1G Pet. 291 ; United States r. Freeman, 
3 How. 550; Marlmry y. Madison, 1 Craneh, 137. Hut this is other- 
wise as to any duties imposed by law on heads of the departments 
Specially. Kendall y. United States, 12 Pet. 524. 

3 Unrand v. Uollis, I l>lateh. 451. « Const., Art. 11. § 2. 



116 CONSTITUTIONAL LAW. 

supposed offence, and relieving the parties from all actual 
or supposed criminality. 3. It may be given by general 
proclamation, forgiving all persons who may have been 
guilty of the specified offence, or offences, 1 and in this 
case the pardon takes effect from the time the proclama 
tion is signed. 2 4. It may in any of these ways be made 
a pardon on conditions to be first performed, in which case 
it has effect only on performance ; or on conditions to be 
thereafter performed, in which case a breach in the condi- 
tion will place the offender in the position occupied by 
him before the pardon was issued. 3 The power of the 
President is not subject to the control of Congress. It 
cannot limit the effect of a pardon, nor exclude from its 
operations any class of offenders. 4 The power to pardon 
includes the power to reduce or commute the punishment, 
but not to substitute one of a different nature. 5 A reprieve 
is a withdrawal or withholding of punishment for a time 
after conviction and sentence, and is in the nature of a 
stay of execution. ) 

By a full pardon the offender is relieved from all 
consequences of the criminal conduct, 6 except so far 
as the government or a third person, by the prosecution 
of judicial proceedings, may have acquired rights to 
property forfeited and actually sold, 7 or an informer 

1 Ex parte Garland, 4 Wall. 333, 380; United States v. Klein, 13 
Wall. 128, 147. 

2 Lapeyre v. United States, 17 Wall. 191 ; United States v. Norton, 
97 U. S. 164. 

3 United States v. Wilson, 7 Pet. 150; United States v. Greathouse, 
2 Abb. U. S. 382 ; Haynes v. United States, 7 Court of Claims, 443. 

4 Ex parte Garland, 4 Wall. 333 ; United States v. Klein, 13 Wall. 
128. 

5 Ex parte Wells, 18 How. 305. 

' 6 Armstrong Foundry Case, 6 Wall. 766 ; Carlisle v. United States, 
16 Wall. 147; Osborn v. United States, 91 U. S. 474. 

7 Knote v. United States, 95 U. S. 149 ; Wallach v. Van Riswick, 
92 U. S. 202 ; United States v. Lancaster, 4 Wash. C C. 64. A pardon 
does not give any right to compensation for what has been suffered 
in his person by the offender by imprisonment. Knote v. United 



POWERS OF THE EXECUTIVE. 117 

may have acquired a vested right to a share in a 
penalty. 1 

Treaties. — VThe President has power, by and with the 
consent of the Senate, to make treaties, provided two 
thirds of the Senators concur. 2 j The Constitution imposes 
no restriction upon this power, but it is subject to the im- 
plied restriction that nothing can be done under it which 
changes the constitution of the country, or robs a depart- 
ment of the government or any of the States of its consti- 
tutional authority. 8 But foreign territory may be acquired 
by treaty; 4 the'operation of acts of Congress as to the 
contracting parties may be modified and controlled, and 
the treaty will take effect as law from its enactment, 
provided it is capable of operating of itself without new 
legislation to give it effect. 5 Whether those with whom 

States, supra. The power to pardon extends to punishments for con- 
tempts. Re Muller, 7 Blatch. 23. 

1 As long as the proceeds of a sale of forfeited property are not 
paid into the treasury or to the informer, a pardon cuts off all right 
of the informer to the penalty. Osborn v. United States, 91 U. S. 474; 
United States v. Thomasson, 4 Biss. 236. 

2 Const., Art. II. § 2, cl. 2. 

3 Story on Const., § 1508; 1 Tucker's Bl., Ap. 332. 

4 American Ins. Co. v. Canter, 1 Pet. 511. Louisiana, Florida, ana 
Alaska were so annexed, as well as the territory acquired from Mexico, 
in 1848 and 1853. In two instances, the annexation of Texas and of 
the Hawaiian Islands, territory has been annexed to the United States, 
not by treaty, but by virtue of a resolution passed through Congress. 
In the former case it might be argued that this power was exercised 
under the clause of the Constitution providing that Congress may 
admit new States into the Union; for Texas was by the resolution 
admitted as a State when it gave its consent to certain provisions ; 
in other words, the resolution constituted an enabling act. See post, 
p. 189; Act of March 1, 1845, 3 Stat, at Large, 797. The annexation 
of Hawaii could not have been brought about under this clause, inas- 
much as there was no intention of recognizing the islands as a State 
in the Union. 

5 Foster v. Neilson, 2 Pet. 253; United States v. Arredondo. 6 Pet, 
691 ; Garcia v. Lee, 12 Pet. 511. A treaty is capable of so operating 
if it prescribes a rule by which the rights of a private citizen mav bo 
determined. Head Money Cases. 112 I'. S. 580. 



118 CONSTITUTIONAL LAW. 

the President has dealt in making a treaty had proper 
authority from their own government for the purpose, and 
whether that government could give the right it has as- 
sumed by the treaty to transfer, are political questions, 
and the judiciary cannot inquire into them. 1 If by a 
treaty a sum of money is to be paid to a foreign nation, 
it becomes the duty of Congress to make the necessary 
appropriation ; but in the nature of things this is a duty 
the performance of which cannot be coerced. 2 The pay- 
ment of awards under arbitration is therefore, in one 
sense, discretionary, but only as the payment of public 
debts is discretionary, — that is, it cannot be compelled 
by any process of execution. 

Appointments and Removals. — The President shall 
nominate, and by and with the advice and consent of the 
Senate shall appoint ambassadors, other public ministers 
and consuls, judges of the Supreme Court, and all other 
officers of the United States whose appointments are not 
in the Constitution otherwise provided for, and which 
shall be established by law; but Congress may by law 
vest the appointment of such inferior officers in the 
President alone, in the courts of law, or in the heads 
of departments. 3 

The power to appoint includes the power to remove ; * 

1 Doe v. Braden, 16 How. 635 ; Fellows v. Blacksmith, 19 How. 366. 

2 This subject underwent much discussion at the time of the treaty 
of 1794, known as Jay's treaty, with England; at the time of the pur- 
chase of Alaska ; and in the later case of the award to England by the 
Commission on the Fisheries. 

3 Const., Art. II. § 2, cl. 3. As to who are inferior officers, see 
United States v. Hartwell, 6 Wall. 385 ; United States v. Moore, 95 
U. S. 760; United States v. Germaine, 99 U. S. 508; United States v. 
Tinklepaugh, 3 Blatch. 425; United States v. Perkins, 116 U. S. 483; 
United States u. Mouat, 124 U. S. 303. 

4 Ex parte Hennen, 13 Pet. 230. See Keyes v. United States, 109 
U. S. 336. The judges of courts of the United States hold during 
good behavior. Const., Art. III. § 1. But judges of territorial courts 
do not come within this clause. McAllister »• United States, 141 U. S. 
174- 



POWERS OF THE EXECUTIVE. 119 

but this, it seems, equally requires the advice and consent 
of the Senate, or may by law be made to do so. 1 But the 
consent of the Senate to an appointment in the place of 
an incumbent is sufficient for the purpose. 2 

The President has power to fill all vacancies that may 
happen during the recess of the Senate, by granting com- 
missions which shall expire at the end of their next ses- 
sion. 3 But he cannot by removals make vacancies in 
order that he may fill them. The President commissions 
all the officers of the United States. 4 

Messages. — The President from time to time shall give 
to the Congress information of the state of the Union, and 
recommend to their consideration such measures as he 
shall judge necessary and expedient ; 5 he may on extraor- 
dinary occasions convene both houses, or either of them, 
and, in case of disagreement between them in respect to 
the time of adjournment, he may adjourn them to such 
time as he shall think proper. 6 

Veto Poiver. — Every bill passed by the two houses 
shall, before it shall become a law, be presented to the 

i Act of March 2, 1867, Rev. Stat, of U. S. § 1767 et seq. This act 
was repealed March 3, 1887. See United States v. Avery, Deady, 204. 

2 Ex parte Hennen, 13 Pet. 230; Blake v. United States, 103 U. S. 
227 ; Mullan v. United States, 140 U. S. 240 ; Bowerbank v. Morris, 
Wall. C. C. 118. 

3 Const. Art. II., § 2, cl. 3. A newly created office, which has never 
been filled, is not a case of vacancy within the meaning of this provis- 
ion. McCrary, Am. Law of Elections, § 237. The President has no 
authority to anticipate a vacancy, and make an appointment in ad- 
vance to fill it. Ibid., § 257. The decision of the executive that a 
vacancy exists is not conclusive. Page v. Hardin, 8 B. Monr. (Ky.) 
648. 

4 Const., Art. II. § 3. As to the time when a commission takes 
effect, see Marbury v. Madison, 1 Cranch, 137; Bowerbank v. Morris, 
Wall. C. C. 118; United States v. Le Baron, 19 How. 73. 

6 Const., Art. II. § 3. In practice, since Mr. Jefferson's time, this 
information is conveyed by written message, transmitted by the Presi- 
dent's private secretary. 

6 See People v. Hatch, 33 111. 9, as to t he circumstances which 
amount to such a disagreement as will justify his interference 



120 CONSTITUTIONAL LAW. 

President; if he approve, he shall sign it, but if not, he 
shall return it with his objections to the house in which it 
originated, who shall enter the objections at large on their 
journal, and proceed to reconsider it. If after such recon- 
sideration two thirds of that house shall agree to pass the 
bill, it shall be sent, together with the objections, to the 
other house, by which it shall likewise be reconsidered ; 
if approved by two thirds of that house, it shall become a 
law. In the reconsideration the yeas and nays must be 
entered at large on the journals of the houses respectively. 
If any bill shall not be returned by the President within 
ten days — Sundays excepted — after it shall have been 
presented to him, it will become a law in like manner as 
if he had signed it, unless the Congress by their adjourn- 
ment prevent its return. 1 I All orders, resolutions, and » 
votes to which the assent of both houses may be neces- 
sary, except on a question of adjournment, must take the 
course of bills. 2 

Compensation. — ; ,The salary of the President is fixed 
by law, and can neither be increased nor diminished dur- 
ing the period for which he shall have been elected, and he 
shall not receive during that period any other emolument 
from the United States, or any of them. 3 According to 
the legislative precedent of 1873 an increase made after 
a President has been re-elected, but before the second 
term has begun, may apply to his salary during the second 
term. 

Appropriations. — The provision that no money shall 
be drawn from the treasury but in consequence of appro- 
priations made by law, 4 applies with peculiar force to the 
President, and is a proper security against the executive 
assuming unconstitutional powers. The further provision 
that periodical statements of receipts and expenditures 

1 Const., Art. I. § 7, cl. 2. 2 Const., Art. I. § 7, cl. 3. 

3 Const., Art. II. § 1, cl. 6. The salary was twenty-five thousand 
dollars until 1873, when it was increased to fifty thousand. 
* Const., Art. I. § 9 ? cl 7. 



POWERS OF THE EXECUTIVE. 121 

shall be published, is intended as a means of holding 
all departments of the government, and particularly the 
legislature, under a due sense of responsibility to the 
people. The duty to see to this publication is properly 
executive. 

General Powers. — The President " shall take care that 
the laws be faithfully executed." Under this clause his 
duty is not limited to the enforcement of acts of Congress 
according to their express terms. It includes " the rights 
and obligations growing out of the Constitution itself, our 
international relations, and all the protection implied by 
the nature of the government under the Constitution." 
He has power, therefore, acting through the Department of 
Justice, to protect from threatened personal attack a judge 
of a Federal court while travelling on his circuit in the 
discharge of his duties. 1 The foreign intercourse of the 
country being committed to the charge of the President, 
u he shall receive ambassadors and other public minis- 
ters " ; 2 and this implies that, for reasons satisfactory to 
himself, he may refuse to receive those who are sent, or, 
after having received, may dismiss them, or request their 
recall, or refuse longer to hold relations with them. 

Executive Independence. — ^The judiciary cannot control 
the President nor his subordinate officers in the perform- 
ance of executive duties, by mandamus, 3 injunction, 4 or 
otherwise. 6 But if an executive officer is charged with a 

1 In re Neagle, 135 U. S. 1, the case of the deputy marshal who 
shot Judge Terry in defence of Mr. Justice Field. See, also, on the 
extent of this power of the executive, the cases cited in the opinion. 

2 Const., Art. II. § 3. 

8 Marhury v. Madison. 1 Crancli, 137 ; Gaines v. Thompson. 7 Wall. 
347; The Secretary v. McGarrahan, 9 Wall. 298, 311 ; United States 
v. Black, 128 U.S. 40; United States r. Windom, 137 U. S. G36; 
United States v. Blaine, 139 U. S. 30G ; New Orleans v. Paine, 147 
U. S. 261. 

4 Mississippi v. Johnson, 4 Wall. 475 ; Georgia v. Stanton, 6 
Wall. 57. 

5 "In exercising the functions of his office the head of an Executive 
Department, keeping within the limits of his authority, should not be 



122 CONSTITUTIONAL LAW. 

purely ministerial duty, involving the exercise of no dis« 
cretion on his part, the courts may compel his performance 
of it. 1 

tinder an apprehension that the motives that control his official conduct 
may . . . become the subject of inquiry in a civil suit for damages." 
Spalding v. Vilas, 161 U. S. 483. 

1 Kendall v. United States, 12 Pet. 524, and cases cited in note 3 
on the preceding page. As to whether these principles apply to the 
executive officers of the States, the courts differ. See Cooley, Const. 
Lim., 6th ed., p. 136, note. 



THE JUDICIAL DEPARTMENT. 123 



CHAPTER VI. 

THE JUDICIAL DEPARTMENT OF THE FEDERAL 
GOVERNMENT.! 

Extent. — The judicial power of the United States ex- 
tends to all cases, in law and equity, arising under the 
Constitution, the laws of the United States, and the trea- 
ties made under their authority ; to all cases affecting 
ambassadors, other public ministers, and consuls ; to all 
cases of admiralty and maritime jurisdiction ; to contro- 
versies to which the United States shall be a party ; to 
controversies between two or more States, between a 
State and citizens of another State, between citizens of 
different States, between citizens of the same State claim- 
ing lands under grants of different States, and between a 
State or the citizens thereof and foreign states, citizens, 
or subjects. 2 / 

The power thus defined is commensurate with the ordi- 
nary legislative and executive powers of the general gov- 
ernment, and the powers which concern treaties ; but it is 
also still broader, and in some cases is made to embrace 
controversies from regard exclusively to. the parties suing 
or sued, irrespective of the nature of the questions in dis- 
pute. The cases in which this authority has been given 
are cases in which the influence of State interests and 
jealousies upon the administration of State laws might 

1 Those using this book in non-professional academic work may 
find it advisable to omit the technical portions of this chapter, only 
touching upon the essentials of such topics as Admiralty, Jurisdiction 
of Federal Courts, Transfer of Causes, otc. — Ed. 

2 Const., Art. III. § 2. 



124 CONSTITUTIONAL LAW. 

possibly be unfavorable to impartial justice, and which 
for that reason it was deemed wise to remove to the Fed- 
eral jurisdiction. 

Laws for its Exercise. — But although the Constitution 
extends the power to the cases specified, it does not make 
complete provision for its exercise, except in the few 
cases of which the Supreme Court is authorized to take 
cognizance. For other cases it is necessary that courts 
shall be created by Congress, and their respective juris- 
dictions defined ; and in creating them Congress may con- 
fer upon each so much of the judicial power of the United 
States as to its wisdom shall seem proper and suitable, 
and restrict that which is conferred at discretion. In 
doing so it may apportion among the several Federal 
courts all the judicial power of the United States, or it 
may apportion a part only, and in that case what is not 
apportioned will be left to be exercised by the courts of 
the States. Thus the States may have a limited juris- 
diction within the sphere of the judicial power of the 
United States, but subject to be further limited or wholly 
taken away by subsequent Federal legislation. 1 Such is 
the state of the law at this time : many cases within the 
reach of the judicial power of the United States are left 
wholly to the State courts, while in many others the State 
courts are permitted to exercise a jurisdiction concurrent 
with that of the Federal courts, but with a final review of 
their judgments on questions of Federal law in the United 
States Supreme Court. 

Cases arising under the Constitution, Laws, and Trea- 
ties. — The reasons for conferring jurisdiction of these 
cases upon the Federal courts were manifest, and were 
also imperative. The alternative must be that the final 
decision upon questions of Federal law must be left to the 

1 It must always appear by the record that a case in the Federal 
court is within its jurisdiction : the presumption is against it until it 
is shown. Robertson v. Cease, 97 U. S. 646 ; Godfrey v. Terry, 97 
U. S. 171. 



THE JUDICIAL DEPARTMENT. 125 

courts of the several States, and this multitude of courts 
of final jurisdiction of the same causes, arising upon the 
same laws, would, in the language of the Federalist, be a 
hydra in government from which nothing but contradict 
tion and confusion could proceed. 1 Uniformity of decis- 
ion could seldom or never be expected, and never relied 
upon ; and the federal law, interpreted and applied one 
way in one State and another way in another, would 
cease to be a law for the United States, because the de- 
cisions would establish no rule for the United States ; and 
the Constitution itself thus administered would lose its 
uniform force and obligation. Such confusion in the laws 
which constitute the bond of union for the States must be 
intolerable while it existed, but could not be of long dura- 
tion, for a speedy dissolution of the Union must follow. 
Any government that must depend upon others for the 
interpretation, construction, and enforcement of its own 
laws, is at all times at the mercy of those on whom it 
thus depends, and will neither be respected at home nor 
trusted abroad, because it can neither enforce respect nor 
perform obligations. 

These reasons, however, do not apply to the original 
jurisdiction over a case, but only to the final application 
in the case of the rule of law that shall govern it. The 
full purpose of the Federal jurisdiction is subserved if the 
case, though heard first in the State court, may be re- 
moved at the option of the parties for final determination 
to the courts of the United States. 2 The legislation of 
Congress has therefore left the parties at liberty, with 
few exceptions, to bring their suits in the State courts 
irrespective of the questions involved, but has made pro- 
vision for protecting the Federal authority by a transfer 
to the Federal courts, either before or after judgment, of 
the cases to which the Federal judicial power extends. 
The exceptions will appear as we proceed. 

1 Federalist, No. 80. 

2 Gaines v. Fuentes, 92 U. S- 10 



126 CONSTITUTIONAL LAW. 

A case may be said to arise under the Constitution, or 
under a law or treaty, when a power conferred or sup* 
posed to be, a right claimed, a privilege granted, a pro- 
tection secured, or a prohibition contained therein, is in 
question. 1 It matters not whether the party immediately 
concerned be the United States, in its sovereign capacity, 
asserting one of its most important powers, or a State 
defending what it believes to be its own reserved jurisdic- 
tion, or a humble citizen contending for a trivial interest: 
if the case turns wholly or in part on the interpretation 
or application of the Constitution, the validity or con- 
struction of an enactment of Congress, the force or ex- 
tent of a treaty, the justification of any act of a Federal 
officer or agent by the Federal authority under which he 
assumes to act, or the validity of any State enactment, or 
any act under supposed State authority, which is disputed 
as an encroachment upon Federal jurisdiction, or as being 
expressly or by implication forbidden by the Federal Con- 
stitution, — in each instance the case is fairly within the 
intent of the provision under consideration, and within 
its reason and necessity. 2 

To give the necessary effect to this provision it has been 
provided that " a final judgment or decree in any suit in 
the highest court of a State in which a decision in the 
suit could be had, where is drawn in question the validity 
of a treaty or statute of, or an authority exercised un- 
der, the United States, and the decision is against their 

1 Story on Const., § 1647. But the fact that a Federal executive 
officer erroneously construes a statute does not make a case where the 
validity of an authority under the United States is drawn in question. 
United States v. Lynch, 137 U. S. 280. Nor is a suit on the judg- 
ment of a Federal court necessarilv such a case. Metcalf v. Water- 
town, 128 U S. 586. 

2 See Tennessee v. Davis, 100 U. S. 257. It is held that jurisdic- 
tion of all controversies to which corporations created by the United 
States are parties may he conferred on the Federal courts : Oshorn v. 
Bank of the United States, 9 Wheat. 738 ; and that suits against them 
may be removed to those courts. Pacific Railroad Removal Cases, 
115 U. S. 2. 



THE JUDICIAL DEPARTMENT. 127 

validity ; or where is drawn in question the validity of a 
statute of, or an authority exercised under, any State, on 
the ground of their being repugnant to the Constitution, 
treaties, or laws of the United States, and the decision is 
in favor of their validity ; or where any title, right, privi- 
lege, or immunity is claimed under the Constitution, or 
any treaty or statute of, or commission held or authority 
exercised under, the United States, and the decision is 
against the title, right, privilege, or immunity specially 
set up or claimed by either party, under such Constitu- 
tion, treaty, statute, commission, or authority, may be re- 
examined, and reversed or affirmed in the Supreme Court 
[of the United States] on a writ of error." 1 

A careful reading of this statute will show that the re- 
view in the Federal Supreme Court is only provided for 
when the decision in the State court is against the title, 
right, privilege, or immunity set up or claimed under the 
Federal authority. Where the decision does not deny 
what is thus claimed, the reason for a review is wanting. 2 
Nor is it sufficient to authorize the removal of the case to 
the Federal Supreme Court that some one of the enu- 
merated questions might have arisen in or been applicable 
to it ; it must appear by the record itself, either expressly 
or by clear and necessary intendment, that some one of 
them did arise in the State court, and was there neces- 
sarily passed upon as the basis of the judgment, and the 
right, title, privilege, or immunity denied. 3 If the case 

1 Act of Sept. 24, 1789, as amended. Rev. Stat. IT. S., § 709. 

2 Gordon v. Caldcleugh, 3 Cranch, 268; Burke v. Gaines. 19 How. 
388 ; "Ryan v. Thomas, 4 Wall. 603. Under the act of 1885, 23 Stat, at 
Large, 443, error lies to the Supreme Court of a Territory whether the 
decision is against or in favor of the title, &c. claimed. Clayton r. 
Utah, 132 U. S. 632. But in certain cases, under the act of March 3, 
1891, 26 Stat, at Large, 826, appeal is taken to the Circuit Court of 
Appeals. See Shute v. Keyser, 149 U. S. 649; Aztec Mining Co, v. 
Hipley, 151 U. S. 79. 

3 Owings y. Norwood's Lessee. 4 Cranch, ,"144; Messenger r. Mason, 
10 Wall. 507; Boiling v. Lersuor, 91 U. S. 594; De Saussure v. Gail 



128 CONSTITUTIONAL LAW. 

involves an independent ground sufficiently broad to sus- 
tain the judgment, there can be no review, though a Fed- 
eral question was likewise passed upon. 1 

Cases affecting Ambassadors, etc. — In all cases affect- 
ing ambassadors, other public ministers and consuls, and 
those in which a State shall be a party, the Supreme Court 
has original jurisdiction. 2 These are the only cases in 
which original jurisdiction is conferred upon that court, 
and it cannot be extended by statute. Therefore the 
court cannot have jurisdiction to issue the writ of man- 
damus to one of the heads of the executive department, 8 
or a writ of certiorari to one of the district judges sitting 
as commissioner under a treaty, 4 or to a military commis- 
sion ordered by a general officer of the United States 
army, commanding a military department which has tried 
and sentenced a civilian to punishment, 5 or a writ of habeas 
corpus, except as an appellate process. 6 The rule of con- 
struction that is applied in these cases is this : that the 
affirmative words of the Constitution, declaring in what 
cases the Supreme Court shall have original jurisdiction, 



lord, 127 U. S. 216; Hale v. Akers, 132 IT. S. 554; Chicago, &c. Ry. 
Co. v. Chicago, 164 U. S. 454. Compare Murray v. Charleston, 96 U. S. 
432; Roby v. Colehour, 146 U. S. 153. For illustrations of the differ- 
ence in the extent of the jurisdiction of the Supreme Court on appeals 
from a State court and from a Federal court, as affected by the ground 
of the decision of the lower court, see New Orleans "Water Works v. 
La. Sugar Co., 125 U. S. 18, and cases cited. 

1 Hopkins v. McLure, 133 U. S. 380; Beatty v. Benton, 135 U. S. 
244; Hammond v. Johnston, 142 U. S. 73. 

2 Const., Art. III. § 2, cl. 2. See Kentucky v. Dennison, 24 How. 
66. But Congress may give concurrent jurisdiction to other courts in 
cases involving consuls, &c, and in cases brought by a State. Bors v. 
Preston, 111 U. S. 252; In re Baiz, 135 U. S. 403; Ames v. Kansas, 
111 U. S. 449. 

3 Marbury v. Madison, 1 Cranch, 137. See cases, ante, p. 121. 

4 Ex parte Metzger, 5 How. 176. 

5 Ex parte Vallandigham, 1 Wall. 243. 

6 See Ex parte Yerger, 8 Wall. 85; Ex parte Hung Hang, 108 
U. S. 552. 



THE JUDICIAL DEPARTMENT. 129 

must be construed negatively as to all other cases. 1 Giv- 
ing the Supreme Court original jurisdiction does not ex- 
clude the jurisdiction of other courts, and therefore cases 
affecting foreign representatives may originate in other 
courts, 2 but they will be subject in such courts to all the 
rules of privilege conferred by international law, and to 
the appellate jurisdiction of the Federal Supreme Court. 
And Congress in its discretion may, as it has clone, 3 ex- 
clude altogether the jurisdiction of State tribunals over 
suits against foreign representatives. As the privileges 
of ambassadors, ministers, and consuls are conferred, not 
for their own advantage, but as the privileges of their 
government, it is fit and proper that the courts of the 
government to which they are accredited, and with which 
alone they can have official dealings, should have exclu- 
sive cognizance of suits against them. 4 

Admiralty arid Maritime Cases. — Although the grant 
of jurisdiction in these cases is not in terms exclusive, it 
has been practically conceded, from the first, that it is 
exclusive in cases of prize, since those were always ex- 
cluded from the cognizance of the courts of law. But it 
is also exclusive in all cases of maritime torts and con- 
tracts, and liens for maritime services, if the proceeding 
is in rem. 5 If, however, the cause of action is one for 
which the common law gives a remedy, the proceeding 
may be taken in the State courts, notwithstanding a rem- 
edy in personam might likewise be had in admiralty. 6 
Justice Story, in discussing the character of this juris- 

1 Marbnry v. Madison, 1 Cranch, 137 ; Ex parte Vallandigham, 1 
Wall. 243. 

2 See cases, note 3, page 128. 
8 Rev. Stat. U. S., § 687. 

4 Davis v. Packard, 7 Pet. 276. 

6 The Moses Taylor, 4 Wall. 411; Tho Tlino, 4 Wall. 555; Tho 
Belfast, 7 Wall. 624. 

6 Leon v. Gal ce ran, 11 Wall. 185; Schoonmnekor v. Gilmore. 102 
U. S. 118. See Rev. Stat. IT. S., § 711, el. 2 ; post, p. 138. For the dis- 
tinction between actions in rem and in personam, see post, p. 349. 





130 CONSTITUTIONAL LAW. 

diction, uses the following words : « ' The admiralty and 
maritime jurisdiction (and the word ' maritime ' was 
doubtless added to guard against any narrow interpreta- 
tion of the preceding word 4 admiralty ') eonferred by the 
Constitution embraces two great classes of cases, — one 
dependent upon locality and the other upon the nature 
of the contract. The first respects acts or injuries done 
upon the high seas, where all nations claim common right 
and common jurisdiction ; or acts or injuries done upon 
the coasts of the sea ; or, at farthest, acts or injuries done 
within the ebb and flow of the tide. The second respects 
contracts, claims, and services purely maritime, and touch- 
ing rights and duties appertaining to commerce and navi- 
gation. The former is again divisible into two great 
branches, — one embracing captures and questions of 
prize arising jure belli ; the other embracing acts, torts, 
and injuries strictly of civil cognizance, independent of 
belligerent operations." 1 But it is now settled, over- 
ruling the early opinions and decisions, that the admi- 
ralty and maritime jurisdiction is not limited to the high 
seas, or to tide- water, or even to waters navigable from 
the ocean, but that it extends to the Great Lakes and their 
navigable waters, 2 and to the great rivers, 3 even though 
their navigable course may be entirely within the limits 
of a single State. 4 " Nor can the jurisdiction of the 

1 Story on Const., § 1666. The scope of civil admiralty jurisdiction 
may be made plainer by the following statement : it embraces (1) prize 

I causes; (2) contracts that are of a maritime nature; (3) torts that 
arise on navigable waters. As to what are contracts of a maritime 
nature, see Curtis, Jurisprudence of the United States Courts, 2d ed., 
pp. 286-293. The navigable waters are the public waters constituting 
avenues of foreign or interstate commerce: The Montello, 11 Wall. 
411, 415. But, as said in the text, admiralty jurisdiction does not 
come from the interstate commerce clause of the Constitution, or 
depend upon the fact that the vessel in question was actually engaged 
in foreign or interstate commerce. ] 

2 The Genesee Chief, 12 How. 443; The Eagle, 8 Wall. 15. 
8 ' Fretz v. Bull, 12 How. 466. 

* Jackson v. The Magnolia. 20 How. 296 ; The General Casa, 1 



THE JUDICIAL DEPABTMENT. 131 

courts of the United States be made to depend on regu- 
lations of commerce. They are entirely distinct things, 
having no necessary connection with one another, and are 
conferred in the Constitution by separate and distinct 
grants." 1 While the limits of the general maritime law 
are matters of judicial determination, within those limits 
it is subject to such modifications as Congress may adopt, 
and no State law can override the action of Congress. 2 
The Federal jurisdiction will therefore include the case of 
collisions at sea between foreign vessels, 3 the case of col- 
lisions on navigable lakes or rivers of vessels engaged in 
commerce between ports of the same State, and occurring 
within the body of a county, 4 and also the case of con- 
tracts of affreightment, though to be performed within 
the State where made. 5 So cases of collision of vessels 
passing from one navigable body of water to another 
through a connecting canal, like the Welland Canal, are 
of Federal cognizance. 6 And admiralty has jurisdiction 
of collisions occurring on tide-water, though the vessel be 
at a wharf or pier in a harbor, 7 but it has none where the 
injury is done on land, as where a fire is set on shore by 
sparks from a steamer. 8 

Brown, Adm. 334. The first of these cases arose on the Alabama 
Kiver, and the second on the Saginaw. 

1 The Commerce, 1 Black, 574, 579. 

2 Butler v. Boston S. S. Co., 130 U. S. 527; In re Garnctt, 141 
(J. S. 1, where the limited liability act was held operative on navigable 
water within a State. 

3 The Belgenland, 114 U. S. 355. 

4 The Commerce, 1 Black, 574; Waring y.Clark, 5 How. 441. 

5 Tbe Belfast, 7 Wall. 624. 

6 Scott v. The Young America, Newb. Adm. 101 ; The Avon, 1 
Brown Adm. 170; The Oler, 14 Am. Law Keg. n. s. 300. So of a 
canal wholly within the State, and a vessel on a voyage between two 
ports in tbe State. Ex parte Boyer, 109 U. S. 629. Compare MeCor- 
mick y. Ives, Abb. Adm. 418. 

7 The Lotty, Olcott, 329. 

8 Tbe Plymouth, ."» Wall. 20; Ex parte Phenix Ins. Co., 118 U. S. 
610. So if a vessel's boom damages a. building. Johnson r. Chicago, 

[&0.E1. Co., 119 U. S. 388. A dry dock is not a subject of salvage ser- 



132 CONSTITUTIONAL LAW. 

The general jurisdiction over the place within a State 
which is subject to the grant of admiralty power adheres 
to the territory, as a portion of the sovereignty not given 
away, and the residuary powers of legislation remain in 
the States. Therefore the admiralty jurisdiction does not 
divest the State jurisdiction to punish crimes. 1 Neither 
does it divest the State jurisdiction to regulate the fisher- 
ies, and to punish those who transgress the regulations. 2 

Suits by and against the United States. — The United 
States, like any other sovereignty, is not suable in its own 
courts, except with its own consent ; but it may consent, 
as has been done by creating and defining the jurisdiction 
of the Court of Claims. Neither is the United States 
suable in a State court, for the United States is supreme 
within its sphere, and the States cannot subordinate it to 
their authority. 3 lit has been quite authoritatively con- 
ceded, however, by the Federal judiciary, " that land 
within a State, purchased by the United States as a mere 
proprietor, and not reserved or appropriated to any spe- 
cial purpose, may be liable to condemnation for streets or 
highways, like the land of other proprietors, under the 
rights of eminent domain " ; 4 and the concession will 
cover all cases of appropriations for public purposes. 5 . 

vice. Cope v. Vallette Dry Dock Co., 119 U. S. 625. But if one is 
injured on a vessel lying at a wharf at the end of the voyage through 
the negligence of her officers, a libel in personam will lie. Leathers v. 
Blessing, 105 U. S. 626. 

1 United States v. Bevans, 3 Wheat. 336. Congress has by statute 
extended the criminal jurisdiction of the Federal courts to the Great 
Lakes and their connectiug waters. 26 Stat, at Large, 424, c. 874 ; 1 
Sup. Rev. Stat. p. 799. See also United States v. Rodgers, 150 U. S. 
249. 

2 Corfield v. Coryell, 4 Wash. C. C. 371; Smith v. Maryland, 18 
How. 71 ; McCready v. Virginia, 94 U. S. 391 ; Manchester v. Massa- 
chusetts, 139 U. S. 240. 

3 Ableman v. Booth, 21 How. 506. 

4 United States v. Chicago, 7 How. 185, 194. 

5 The right was asserted to the fullest extent by Mr. Justice 
McLean in United States v. Railroad Bridge Co., 6 McLean, 517. 



THE JUDICIAL DEPARTMENT. 133 

A right to appropriate implies a right to provide the 
means whereby a court may obtain jurisdiction, which in 
these cases may be some other means than the ordinary 
writs. But the States can have no right to appropriate 
any portion of the land which has been purchased, or oth- 
erwise acquired, by the United States, as a means in the 
performance of any of its governmental functions ; such 
as land held for a fortification, 1 or for an arsenal and 
government manufactory of arms. 2 

As a corporation the United States may sue as plaintiff 
in either its own or the State courts, or in the courts of a 
foreign country, as occasion may require. 3 

Controversies between States. — Many questions might 
arise under this clause concerning the reach of the Federal 
jurisdiction over controversies between States, the sub- 
jects that may be dealt with and determined, and how far 
the sovereign rights of the States, and the extent of their 
respective territorial jurisdictions, may be brought within 
the cognizance and final determination of the Federal 
judiciary. The clause conferring jurisdiction of such 
controversies is general, and only as cases arise can it 
be determined whether they present questions which are 
properly of judicial cognizance as between the States. A 
question of boundary is plainly such a question, 4 and so 
is the question whether the conditions in a compact be- 
tween two States, on the performance of which certain 
territory was to be detached from the one and become a 



1 United States v. Chicago, 7 How. 185. 

2 United States v. Ames, 1 Wood. & M. 76. Whether a suit is 
against the United States or its officers as individuals is determined 
on much the same principles as in case of a State. See post, p. 134, 
and also Belknap v. Schild, 161 U. S. 10. 

8 Queen of Portugal v. Grymes, 7 CI. & Fin. 66; United States P. 
Wagner, L. R. 2 Ch. A pp. 582. 

4 "Rhode Island v. Massachusetts, l l 2 Pet. 657; Missouri r. Iowa, 7 
How. 660; Florida v. Georgia, 17 How. 478; Alabama v, Georgia, 23 
How. 505. 



134 CONSTITUTIONAL LAW. 

part of the other, have ever been complied with, so as to 
effect the transfer. 1 

By " States," in the provision of the Constitution con- 
ferring this jurisdiction, is intended the States in the 
Union. 2 An Indian tribe is neither a State in the Union 
in this sense, nor a foreign state, and entitled as such to 
sue in the Federal courts. 3 > 

Suits by States. — The Federal jurisdiction extends to 
suits by States against citizens of other States, and 
against foreign states, citizens, or subjects. The States 
intended here are States holding their constitutional rela- 
tions to the United States. A State which has been in 
rebellion, and is not restored to peaceful relations as a 
member of the Union, cannot sue in the Federal courts. 4 
The fact that, in a suit between two individuals to which 
a State does not appear to be a party of record, a ques- 
tion of boundary between States may incidentally arise, 
does not make the case one to which the State is a party 
within the meaning of the provision which gives to the 
Supreme Courts original jurisdiction of suits where a 
State is a party. 5 A suit against a State agent for mon- 
eys or securities wrongfully taken by him under a void 
law is not a suit against the State ; 6 but a suit by the 
Governor of the State, in his title of office and in the in- 
terest of the State, is a suit by the State. 7 I The courts of 
one country do not execute the penal laws of another, and 
hence a State cannot bring an action in the Supreme Court 
of the United States on a judgment of its court based on 
one of its own penal statutes. , Such a judgment would 
not be recognized in any manner in the courts of another 
State, and the grant of judicial power to the Federal 

1 Virginia v. West Virginia, 11 Wall. 39. 

2 Scott v. Jones, 5 How. 343, 377. 

3 Cherokee Nation v. Georgia, 5 Pet. 1. 

4 Texas v. White, 7 Wall. 700. 

5 Fowler v. Lindsey, 3 Dall. 41 1. 

6 Osborn v. Bank of the United States, 9 Wheat. 738. 
* The Governor v. Madrazo, 1 Pet. 110, 124. 



THE JUDICIAL DEPARTMENT. 135 

courts was not intended to confer upon them jurisdiction 
of a suit of such a nature that it could not be entertained 
by the judiciary of another State at all. 1 

Suits against States. — The clause of the Constitution 
which at first conferred the Federal jurisdiction extended 
to suits against States by other States, by citizens of other 
States, and by foreign states, citizens, or subjects. 2 But 
by amendment to the Constitution this jurisdiction has 
been so limited as to be confined to suits brought by 
States in the Union, and by foreign states, and the States 
are no longer subject to be sued in the Federal courts by 
private persons. 3 i But the fact that a State has an inter- 
est in the controversy, however extensive, will not bring 
the case under the amendment and exclude the Federal 
jurisdiction so long as the State itself is not a party. 4 
Therefore a State corporation may be sued in the Federal 
courts, notwithstanding the State is the sole stockholder. 5 . 
But if the State is an indispensable party and must be 
brought into the litigation, a suit will not lie. 6 It is not 
believed, however, that a State can be indirectly sued by 

1 Wisconsin v. Pelican Ins. Co., 127 U. S. 265. The object of vest- 
ing in the Federal courts this jurisdiction of suits by a State against 
the citizens of another was to enable the State to avoid the partiality 
which might exist in the courts of another State. The courts of the 
United States have no power to execute the penal laws of the indi- 
vidual States. Gwin v. Breedlove, 2 How. 29, 36, 37. 

2 Chisholm v. Georgia, 2 Dall. 419. 

8 Const., Amendment 11. A State may not be sued without its 
own consent by its own citizens or by citizens of another State. Hans 
v. Louisiana, 134 U. S. I ; Railroad Co. v. Tennessee, 101 U. S. 337. 
And it may attach any conditions it pleases to its consent. Do Saus- 
Bure v. Gaillard, 127 U. S. 216. By appearing in a suit against it, the 
State may waive its immunity. Clark v. Barnard, 108 IT. S. 436. A 
State cannot, by taking assignments from its citizens of claims held bv 
them against another State, entitle itself to sue thereon in (he Federal 
courts. New Hampshire v. Louisiana, 108 IT. S. 76. See Cunningham 
v. Railroad Co., 109 U. S. 446. 

4 Osborn r. Bank of United States, 9 Wheat. 738. 

5 Bank of Kentucky v. Wister, 2 Pet. Sid. 

6 Cunningham v. Macon, &c. R. R. Co., 109 U. S. 446. 



136 CONSTITUTIONAL LAW. 

making its agent or officer the nominal defendant, where 
the agent or officer merely holds the State property or 
securities, or occupies a position of trust under the State., 
and in the performance of its duties commits upon others 
no trespass, so that the cause of action relied upon must be 
one in which he would be responsible only as such agent, 
officer, or trustee. If such action were permitted, the 
Eleventh Amendment might be nullified. A suit, there- 
fore, whether brought by a citizen of the same State or 
of another State, will not lie against an officer, if the real 
purpose of it is to compel the performance by the State of 
its obligations. 1 But where an officer, claiming to act as 
such, under color of unconstitutional laws invades prop- 
erty or rights acquired under contracts with the State, and 
makes himself a trespasser 2 by attempting to enforce a void 
authority, it is immaterial to the jurisdiction who under- 
took to confer the void authority, since he is responsible 
individually, on well settled common law principles. 3 ■ 

The force of the Eleventh Amendment is restricted to 
original suits, and it does not preclude a review in the 
Federal Supreme Court of decisions in the State courts 
where is drawn in question any title, right, privilege, or 
exemption under the Constitution, laws, or treaties of the 
United States. 4 

Other Controversies. — Where the jurisdiction of a case 
depends upon the citizenship of parties, the fact should 
appear on inspection of the record. 5 And an averment 

1 Louisiana v. Jumel, 107 U. S. 711 ; Hagood v. Southern, 117 U. S. 
52 ; In re Ayers, 123 U. S. 443. This amendment does not prevent an 
action against a county. Lincoln Co. v. Luning, 133 U. S. 529. 

2 As was the case in Osborn v. Bank of United States, 9 Wheat. 738. 

3 United States v. Lee, 106 U. S. 199; Poindexter v. Greenhow, 114 
U. S. 270; Pennoyer v. McConnaughy, 140 U. S. 1 ; In re Tyler, 149 
U. S. 164 ; Tindal v. Wesley, 167 U. S. 204. An action lies against an 
officer to compel him to do what a statute requires. Rolston v. Com'rs, 
120 U. S. 390. 

* Cohens v. Virginia, 6 Wheat. 264. 

6 Brigham v. Cabott, 3 Dall. 382 ; Jackson v. Ashton, 8 Pet. 148 ; 
Bailey v. Dozier, 6 How. 23 ; Robertson v. Cease, 97 U. S. 646 ; St» 



THE JUDICIAL DEPARTMENT. 137 

of residence is not equivalent to an averment of citizen- 
ship. 1 A resident in one of the Territories, or of the 
District of Columbia, is not entitled to sue or be sued as 
a citizen of a State. 2 A corporation created by and trans- 
acting business within a State is for this purpose to be 
deemed to represent corporators who are citizens of the 
State, 3 and a foreign corporation is to be deemed to 
represent corporators who are aliens. 4 As a declaration 
of intention to become a citizen under the naturalization 
laws does not make one a citizen, it will not preclude an 
alien suing as such. 5 The courts will not be open to suits 
by aliens when their country is at war with our own. 

Legislation assigning the Jurisdiction to Courts. — In 
the exercise of its authority to assign to courts such por- 

vens v. Nichols, 130 U. S. 230; Denny v. Pironi, HI U. S. 121. If 
the record fails to show a case of which the court can take jurisdic- 
tion, its duty is to dismiss it of its own motion. Metcalf v. Water- 
town, 128 U. S. 586, and cases cited; Robinson v. Anderson, 121 
U. S. 522. And under the act of 1875, if the averments show diverse 
citizenship but the proofs do not, the Supreme Court will dismiss. 
Morris v. Gilmore, 129 U. S. 315. 

1 Robertson v. Cease, 97 U. S. 646; Menard v. Goggan, 121 U. S. 
253. Compare Shelton v. Tiffin, 6 How. 163. 

2 Hepburn v. Ellzey, 2 Cranch, 445, 448 ; Scott v. Jones, 5 How. 
343, 377 ; Hooe v. Jamieson, 166 U. S. 395. 

3 United States Bank v. Planters' Bank, 9 Wheat. 904 ; Ohio, &c. 
R. R. Co. v. Wheeler, 1 Black, 2S6 ; Insurance Company v. Francis, 
11 Wall. 210; St. Louis, &c. By. v. James, 161 U. S. 545. A stock- 
holder resident in another State may nevertheless as such stockholder 
be the antagonistic party. Dodge v. Woolsey, 18 How. 331. 

4 Society, &c. y. New Haven, 8 Wheat. 464; Steamship Co. v. 
Tugman, 106 U. S. 118. Where a corporation of New Hampshire 
and one of the same name of Massachusetts are by the action of both 
States permitted to unite to operate a railroad, the New Hampshire 
corporation so far retains its original character that it may tile a hill 
against a Massachusetts corporation in the Federal court tor that State. 
Nashua R. R. Corp. v. Lowell R. R. Corp., 136 l'. S. .*>">('>. Com- 
pare Memphis, &c. R. R. Co. v. Alabama, 10" l'. S. 581, 

5 Story on Const., § 1700. If au alien is sued, his alienage must 
he averred. 
Preston, 111 U. S. 252. 



138 CONSTITUTIONAL LAW. 

tion of the judicial power as it shall determine is propel 
or needful, Congress has provided by law that the juris- 
./"cliction vested in the courts of the United States, in the 
cases and proceedings following, shall be exclusive of the 
courts of the several States : — 

1. Of all crimes and offences cognizable under the au- 
thority of the United States ; 

2. Of all suits for penalties and forfeitures incurred 
under the laws of the United States ; 

3. Of all civil causes of admiralty and maritime juris- 
diction ; saving to suitors in all cases the right of a com- 
mon law remedy where the common law is competent to 
give it ; 

4. Of all seizures under the laws of the United States, 
on land or waters not within admiralty and maritime 
jurisdiction ; 

5. Of all cases arising under the patent right or copy- 
right laws of tne United States ; 

6. Of all matters and proceedings in bankruptcy ; 

7. Of all controversies of a civil nature where a State 
is a party, except between a State and its citizens, and 
between a State and citizens of other States or aliens. 1 

The Federal courts have also original jurisdiction in a 
number of other cases, such as those arising under revenue 
or postal laws, those for violation of the Federal statute 
for protection of civil rights, and suits for penalties, etc. 

Also, concurrently with State courts, of all suits of a 
• civil nature, at common law or in equity, where the matter 
in dispute exceeds, exclusive of interest and costs, the sum 
or value of $2,000, and arising under the Constitution and 
laws of the United States, or treaties made or which shall 
be made under their authority, or in which controversy 
the United States are plaintiffs or petitioners ; or in which 
there shall be a controversy between citizens of different 
States, in which the matter in dispute exceeds, exclusive 
of interest and costs, the sum or value aforesaid; or a 
iRev. Stat. U.S., §711. 



THE JUDICIAL DEPARTMENT. 139 

controversy between citizens of the same -State claiming 
lands under grants from different States ; or a controversy 
between citizens of a State and foreign states, citizens, or 
subjects, in which the matter in dispute exceeds, exclusive 
of interest and costs, the sum or value aforesaid. 1 

Congress has also, in pursuance of treaties with certain 
countries, provided for the holding of courts in them by 
the ministers and consuls of the United States, by which 
offences committed in those countries by citizens of the 
United States are to be tried, as well as controversies 
between such citizens and others. 2 

Transfer of Causes from State Courts. — As suits may 
be instituted in the State courts in all cases in which the 
jurisdiction of the Federal courts is not made exclusive, the 
purpose had in view in conferring the Federal power would 
often be defeated if there were not some provision under 
which a cause brought in a State court might be removed 
to a Federal court. For example, if a citizen of one State 
should bring suit in one of its courts against a citizen of 
another State, the case would be one which by the Consti- 
tution is embraced in the grant of the Federal power ; and 
the reason why it was included is that it may sometimes 
happen that local feelings, sentiments, prejudices, or pre- 
possessions may preclude a fair trial in the State court, or 
at least give rise to fears or suspicions that such may be 
the case. But it may be and is entirely proper to allow 
the suit to be thus brought in the first instance, because in 
most cases no such influences will be suspected or feared, 
and the parties would go to trial in the State court without 
objection. But if they are feared, the reasons for refer- 
ring the case to the Federal court are then apparent. A 

* Act of March 3, 1887, 24 Stat, at Large, 552, as amended by act 
of August 13, 1888, 25 Stat, at Large, 434. 

2 Rev. Stat. U. S., § 4083 et seq, A British subject who has snipped 
as a sailor upon an American vessel may he tried before such a court 
for the murder of the mate of the vessel while it was lying in Japanese 
waters. In re Ross, 140 U. S. 453. 



140 CONSTITUTIONAL LAW. 

case of more importance to the Federal jurisdiction is 
where a Federal officer is sued in a State court, for some 
act or omission in his office. For many such acts or omis- 
sions there is no civil responsibility in any court, but for 
some there is. The general rule is, that, if a duty imposed 
upon an officer is exclusively of a public nature, his 
neglect to perform it can only be punished by some pro- 
ceeding, either civil or criminal, instituted by the proper 
public authorities ; but if a duty is imposed upon him for 
the benefit of an individual, the latter has his private 
action to recover damages for any failure in performance 
whereby he is injured. The difference between the public 
and the private duties is well illustrated in cases arising 
under the post office laws. The Postmaster General has 
duties to perform, which are of high importance to the 
nation and to all its people ; but they are public duties ex- 
clusively, and he never becomes charged with obligations 
to any particular person, so as to be liable to individual 
actions. 1 It is different with a local postmaster. When 
mail matter is received at his office, directed to a particu- 
lar person, it becomes his duty to that person to deliver 
it on demand, and he is liable to a suit for damages in 
case of refusal. 2 A like distinction exists between the 
duties of the Secretary of the Treasury and the collector 
of the customs at a port : the former is responsible only to 
the government for the faithful performance of duty ; but 
the latter owes duties to those whose imported goods pass 
through his hands, and he may become liable to private 
suits for oppressive conduct and illegal charges. 8 So the 
duties of the United States marshal, which resemble those 
of the sheriff, are to a large extent duties to individuals, 
and may frequently subject him to suits. So any Federal 

1 Lane ?>. Cotton, 1 Ld. Raym. 646; s. c. 12 Mod. 472, and 1 Salk. 
17 ; Smith v. Powditch, Cowp. 182 ; Rowning v. Goodchild, 2 W. BL 
906 ; Whitfield v. Le Despencer, Cowp. 754, 765. 

2 Teall v. Felton, 1 N. Y. 537 ; s. c. in error, 12 How. 284. 
8 Barry v . Arnaud, 10 Ad. & El. 646. 



THE JUDICIAL DEPAKTMENT. 141 

officer may become involved in private suits on allegations 
that, in the pretended discharge of duty, he has tres- 
passed on the rights of third parties. All these, and 
many others which might be named, are cases coming 
within the scope of the Federal judicial power, and many 
of them are cases in which it might be exceedingly impor- 
tant to the Federal authority that they be referred to the 
Federal courts for final adjudication. 

Accordingly it is provided by statute that causes may 
be removed from the State to the proper Circuit Courts of 
the United States in the following cases : 1 — 

Any suit of a civil nature at law or in equity arising 
under the Constitution or laws of the United States or 
treaties made under its authority, of which the Circuit 
Courts of the United States are given original jurisdiction 
by section one of the act, 2 maybe removed by the defend- 
ant or defendants. 

Any other suit of a civil nature at law or in equity, of 
which the Circuit Courts are given jurisdiction by section 
one of the act, brought in a State court, may be removed 
by the defendant or defendants, if they are non-residents 
of that State. 

When in any suit mentioned in this section there is a 
controversy which is wholly between citizens of different 
States, and which can be fully determined as between 
them, either one or more of the defendants actually inter- 
ested in such controversy may remove said suit. 8 

1 Proceedings to appropriate property to public uses under the 
eminent domain are cases removable to the Federal courts, where the 
alienage or citizenship is such as to give the right. Warren v. Kail- 
road Co., 6 Biss. 425 ; Patterson v. Boom Co., 3 Dill. 465 ; Boom Co. 
v. Patterson, 98 U. S. 403. 

' 2 The part of the section referred to is given, ante, p. 13S. The fact 
that the case arises under the Constitution, laws, or treaties must appear 
by plaintiff's own pleadings. Postal Telegraph Co. v. Alabama. L55 
U. S. 482 ; Chappell v. Waterworth, 155 V. S. 102. 

3 Tho controversy must be what is known as a separable contro- 
versy, — that is, the suit must bo divisible into two or more indepen. 
dent suits, one of which is wholly between citizens of different States. 



142 CONSTITUTIONAL LAW. 

Where a suit is pending, in which there is a controversy 
between a citizen of the State in which the suit is brought 
and a citizen of another State, any defendant, being such 
citizen of another State, may remove such suit, at any 
time before the trial thereof, when it shall be made to 
appear to the Circuit Court that from prejudice or local 
influence he will not be able to obtain justice in such 
State court, or in any other State court to which said 
defendant may because of such prejudice and local influ- 
ence have the right to remove said cause ; provided that 
if the cause is severable and can be justly determined in 
the State court as to the other defendants, it may be 
remanded as to such defendants. 

Where a suit involves the title to land, and it is made 
to appear that the parties claim title under grants from 
different States, the suit may also be removed. 1 

Also, when any civil suit or criminal prosecution is com- 
menced in any State court, for any cause whatsoever, 
against any person who is denied, or cannot enforce, in 
the judicial tribunals of the State, or in the part of the 
State where such suit or prosecution is pending any right 
secured to him by any law providing for the equal civil 
rights of citizens of the United States, or of all persons 

1 Act of March 3, 1887, 24 Stat, at Large, 552, as amended by act 
of August 13, 1888, 25 Stat, at Large, 434, §§ 1 and 2. The right to 
remove does not depend on the validity of the claim set up under the 
Constitution and laws. It is enough if it involves a real controversy. 
Southern Pacific R. R. Co. v. California, 118 U. S. 109. A case is re- 
movable as arising under laws of United States where the validity of 
a land patent is involved. Mitchell v. Smale, 140 U. S. 406. See cases 
ante, pp. 125, 126. To authorize removal on the ground of local preju- 
dice, $2,000 must be involved, and the proof must convince the court 
of the truth of the ground alleged. A perfunctory showing by a for- 
mal affidavit is not enough. In re Pennsylvania Co., 137 U. S. 451. 
As to what are separable controversies, see Graves v. Corbin, 132 U. S. 
571 ; Louisville, &c. R. R. Co. v. Wangelin, 132 U. S. 599 ; Brown v. 
Trousdale, 138 U. S. 389 ; Bellaire v. Baltimore & Ohio R. R., 146 U. S. 
117. As to construction of words " before the trial thereof," see Fisk 
V. Henarie, 142 U. S. 459. 



THE JUDICIAL DEPARTMENT. 143 

within the jurisdiction of the United States ; or against 
any officer, civil or military, or other person, for any 
arrest or imprisonment, or other trespasses or wrongs, 
made or committed by virtue of or under color of author- 
ity derived from any law providing for equal rights as 
aforesaid ; or for refusing to do any act on the ground 
that it would be inconsistent with such law, — such suit or 
prosecution may, upon the petition of the defendant stall- 
ing the facts and verified by oath, be removed for trial 
into the next Circuit Court to be held in the district. 1 

Also, when any suit or criminal prosecution is com- 
menced in any court of a State against any officer ap- 
pointed under or acting by authority of any revenue law 
of the United States ; or against any person acting under 
or by authority of such officer, on account of any act done 
under color of his office or of any such law, or on account 
of any right, title, or authority claimed by such officer or 
person under any such law ; or is commenced against any 
person holding property or estate by title derived from 
any such officer, and affects the validity of any such 
revenue law, — such suit or prosecution may be removed 
for trial into the Circuit Court of the United States for 
the district, upon the petition of the defendant setting 
forth the nature of the suit or prosecution, and duly 
verified. 2 

Also, whenever a personal action is brought, in any 
State court, by an alien, against a citizen of a State who 
is, or when the action accrued was, a civil officer of the 

1 Rev. Stat. U. S., § 641. See Texas v. Gaines, 2 Woods, 342; 
Strauder v. West Virginia, 100 U. S. 303; Neal v. Delaware, 103 
U. S. 370; Bush v. Kentucky, 107 U. S. 110. The denial of a right or 
inability to enforce it must bo one arising from the Constitution or 
laws of the State. Gibson v. Mississippi, 162 U. S. 565. 

' 2 TCev. Stat. U. S., § 643. Criminal prosecutions for alleged offences 
against State laws may be removed from the State to the Federal court 
whon the facts are such as to bring them within the terms of Rev. Stat. 
IT. S., § 648, above cited. Tennessee v. Davis, 100 U. S. 257 ; Davis p 
South Carolina, 107 U. S. 597. 



144 CONSTITUTIONAL LAW. 

United States, being a non-resident of the State where 
suit is brought, the action may be removed into the Cir- j 
cuit Court of the United States for the' district, in the 
manner provided for the cases last above mentioned. 1 

In some of the cases in which removal of causes is pro- 
vided for, there is no act of Congress which would give 
to the Federal courts original jurisdiction. Nevertheless, 
it is competent to give jurisdiction of cases removed, pro- 
vided they come within the grant of judicial power by the 
Constitution. 2 

The right of removal cannot be taken away or limited 
by State laws. Therefore, a right to recover damages 
for a personal injury arising under a State statute may 
be enforced in the Federal court by a citizen of another 
State against a citizen of the State where suit is brought, 
notwithstanding the State statute undertakes to limit the 
remedy to suits in its own courts. 3 And the right of a 
foreign corporation to do business in a State cannot be 
made conditional on its waiving the right to remove suits 
against it to the Federal courts, and the waiver itself, if 
made, would be void. 4 . 

The right to transfer a cause to the Federal court being 
statutory, the case shown by the petition must come 
clearly within the statute, or it will be ineffectual. 5 
"While, in general, any proceeding before a court is a 
4 'suit" within the statute, one before an administrative 
board is not. 6 If the transfer is actually made on in- 

i Rev. Stat. U. S., § 644. 

2 Gaines v. Fuentes, 92 IT. S. 10. 

3 Railway Co. v. Whitton, 13 Wall. 270. 

4 Insurance Co. v. Morse, 20 Wall. 445 ; Barron v. Burnside, 12! 
U. S. 186 ; Martin v. Baltimore & Ohio R. R., 151 U. S. 673. 

6 Insurance Co. v. Pechner, 95 U. S. 183; Gold Washing, &c. it. 
Keyes, 96 U. S. 199. But a State court is not bound to surrender 
jurisdiction until a case is made which shows on the face of the papers 
ft right to remove. Stone v. South Carolina, 117 U. S. 430. An ap- 
plication may not he conditioned upon the decision of a motion to dis- 
miss pending in the State court. Manning it. Amy, 140 U. S. 137. 

6 Upshur Co. v. Rich, 135 U. S. 467, and cases cited and. discussed. 



THE JUDICIAL DEPARTMENT. 145 

sufficient papers, the Federal court will remand the case 
on its attention being called to the defect ; x but if they 
are sufficient, the State court can take no further pro- 
ceedings in the cause except such as are incident to the 
removal. 2 

/ Habeas Corpus. — The Supreme Court and the Circuit 
and District Courts have power to issue the writ of habeas 
corpus, and the several justices and judges thereof, within 
their respective jurisdictions, have also power to issue it, 
for the purposes of an inquiry into the cause of restraint 
upon liberty. But in no case shall the writ extend to a 
prisoner in jail, unless where he is in custody under or by 
color of the authority of the United States ; or is com- 
mitted for trial before some court thereof ; or is in cus- 
tody for an act done or omitted in pursuance of a law of 
the United States, or of an order, process, or decree of a 
court or judge thereof ; 3 or is in custody in violation of 

1 Gold Washing, &c. Co. v. Keyes, 96 U. S. 199. All disputed ques- 
tions of fact raised upon petitions for removal are to be determined by 
the Federal court. Kansas City, &c. R. R. Co. v. Daughtry, 138 U. S. 
298. 

2 Steamship Co. v. Tugman, 106 U. S. 118. "Where a case has once 
been tried in the State court, and the rule of law settled for its deter- 
mination in the highest State court, if afterwards a new trial is granted, 
and the case then transferred to the Federal court, the latter will ap- 
ply the same rule of law in disposing of it. Hazard v. Railroad Co., 
4 Biss. 453. 

3 This particular case was provided for by what was known as the 
"Force Bill," of March 2, 1833,4 Stat, at Large, 632, passed to coun- 
teract South Carolina measures looking to the.nullification of Federal 
revenue laws. It was first called in requisition, however, to prevent 
the nullification of the Fugitive Slave Law. The United States mar- 
shal for the district of Ohio, disregarding an order by a State judge 
for the discharge from custody of a person held by him as a fugitive 
slave, was proceeded against as for a contempt of court, lie was 
brought before Mr. Justice McLean at chambers, ami discharged. 
The proceedings showed on their face that the State judge had no 
jurisdiction, and the discharge *'f the marshal followed as of course. 
Robinson, ex parte, 6 McLean, 355. See Ex parte Bridges, 2 Woods. 
428. In United States v. The Jailer of Fayette Co., Ky., '2 Abb. V. S. 
265, the same law was applied to a different case. The relator who 

10 



146 CONSTITUTIONAL LAW. 

the Constitution, or of a law or treaty of the United 
States ; or, being a subject or citizen of a foreign state 
and domiciled therein, is in custody for an act done or 
omitted under any alleged right, title, authority, privilege, 
protection, or exemption claimed under the commission 
or order or sanction of any foreign state, or under color 
thereof, the validity and effect whereof depend upon the 
law of nations ; x or unless it is necessary to bring the pris- 
oner into court to testify. 2 This last is a provision for 
facilitating the investigation of facts in Federal tribunals, 
and all the other cases mentioned are cases in which the 
national authority is in some way involved. 3 The Supreme 
Court has authority to issue the writ, but, except in cases 
affecting ambassadors, ministers, or consuls, or those in 

sued out the writ was in the custody of the jailer under a regular com- 
mitment, made by a court of competent jurisdiction under the laws of 
Kentucky, charging him with murder. Nothing on the face of the 
papers indicated that the case was any other than a common case of 
the crime charged. The relator, however, offered to show that the 
act with which he was charged was done by him under the authority 
of the United States in the execution of its revenue laws. Judge Bal- 
lard, United States District Judge, entered upon an examination of 
the facts, and, reaching the conclusion that the prisoner was justified, 
ordered him discharged. See also Ex parte Jenkins, 2 Wall. Jr. C. C. 
521. The principal question which the above cases present must be 
regarded as settled by In re Neagle, 135 U. S. 1, where a man who was 
attacking Justice Field, while he was travelling his circuit in the per- 
formance of his duties, was killed by a deputy United States marshal, 
and the latter, being charged with murder by the State of California, 
was released on habeas corpus by the United States Circuit Court. The 
Supreme Court, having reached the conclusion that the marshal's act 
was justifiable and was done in pursuance of a law of the United 
States, and that his imprisonment was in violation of the laws thereof, 
held that the case was witbin the statute, and that he was not answer- 
able for his act to the State of California. 

1 This provision was made by act of Aug. 29, 1842, 5 Stat, at Large, 
529, and was enacted in consequence of the prosecution in New York 
of a British subject for an act which his government avowed. 

2 Rev. Stat. U. S., §§ 751-753. 

3 There is no jurisdiction, for example, to interfere with the custody 
of children, even where there is diverse citizenship. In re Burrus, 
136 U. S. 586. 



THE JUDICIAL DEPABTMENT. 147 

which a State is a party, it can only be done for a review 
of the judicial decisions of some inferior officer or court. 1 
In the exercise of this revising power it may issue the 
writ ; 2 and it also has jurisdiction of appeals from rulings 
of the Circuit Courts on writs issued by them in certain 
cases provided for by statute. 3 

( The general authority to examine, by means of this 
writ, into unlawful restraints upon personal liberty, has 
not been conferred upon the United States, and therefore 
remains with the States. 4 Subject to the paramount au- 
thority of the national government to determine whether 
persons held by its courts and officers are properly held, 
the States may inquire into the grounds upon w T hich any 
person within their limits is held, and may discharge him 
if his restraint is illegal, even though the illegality arises 
from violation of the Constitution and laws of the United 
States. 5 But if State tribunals issue the writ for a prisoner 
detained under Federal authority, it must be dismissed 
when return is made showing the facts. 6 A prisoner held 
under State process for extradition to another State may 
have a habeas corpus from a Federal court or judge ; the 

1 Ex parte Hung Hang, 108 U. S. 552. 

2 Ex parte Watkins, 7 Pet. 568; Ex parte Milburn, 9 Pet. 704; 
Matter of Kaine, 14 How. 103 ; Ex parte Virginia, 100 U. S. 339. 

3 Act of March 3, 1885, 23 Stat, at Large, 437, and Rev. Stat. U. S., 
§ 763, as amended by act of March 3, 1891, 26 Stat, at Large, 826, 828, 
c. 517. See In re Lennon, 150 U. S. 393; Horner v. United States, 
143 U. S. 570. 

4 Ex parte Dorr, 3 How. 103 ; Dekrafft v. Barney, 2 "Black, 704. 
A Federal court may, in advance of a trial in a State court for an 
offence against a State law, which is void under the Federal Constitu- 
tion, discharge a defendant, hut ordinarily, when hail is allowed, it 
will not; Ex parte Itoyall, 117 U. S. 241 ; and in general will dis- 
charge a prisoner only in a case of urgency, leaving him to assort his 
constitutional rights before the State courts, and finally, if necessary, 
to carry the suit on writ of error to the Federal Supreme Court. 
Whitten v. Tomlinson, 160 TJ. S. 231 ; Baker v. Criee. 169 U. S. 284 ; 
In re Duncan, 139 U. S. 449. 

6 Robb v. Connolly, 111 U. S. 624. 

6 Abloman v. Booth, 21 How. 506; Tarble's Case, 13 Wall 397. 



148 CONSTITUTIONAL LAW. 

process of extradition being provided for by, and taken 
under, the Constitution of the United States. 1 

The writ of habeas corpus cannot be used as a writ of 
error. If an inferior court or an officer has jurisdiction to 
act in the matter in question, the action will not be set 
aside for irregularities or errors of judgment. 2 

Appellate Jurisdiction. — In all cases to which the 
Federal judicial power extends, except those in which ori- 
ginal jurisdiction is conferred upon it, the Supreme Court 
has appellate jurisdiction, both as to law and fact, with 
such exceptions and under such reservations as Congress 
shall make. 3 What the cases are in which appeals may be 
taken from the State courts has been shown ; and provis- 
ion has also been made by various statutes for the exer- 
cise of appellate jurisdiction in cases heard in the Federal 
courts. But many cases are allowed to be finally deter- 
mined in the Circuit Court of Appeals, 4 the Circuit and 
District Courts, and the Court of Claims. 

1 Ex parte Smith, 3 McLean, 121. 

2 In re Lane, 135 U. S. 443 ; Stevens v. Fuller, 136 U. S. 468 ; In 
re Wood, 140 U. S. 278. So as to the ruling of an officer in extradition 
proceedings. In re Oteiza, 136 U. S. 330; Ornelas v. Ruiz, 161 U. S. 
502 ; Bryant v. United States, 167 U. S. 105. A conviction of murder 
will not be set aside because too few grand jurors found the indictment. 
Ex parte Wilson, 140 U. S. 575. If, however, there is no jurisdiction 
to impose the restraint, the prisoner will be discharged, as in case of 
punishment for contempt of a void order of court. In re Ayers, 123 
U. S. 443 ; or in case of a second sentence for the same offence, in con- 
travention of an express constitutional immunity. Nielsen, Petitioner, 
131 U. S. 176. 

3 Const , Art. III. § 2, cl. 2. In most cases there can be no appeal 
from the Circuit Courts unless $5,000 is involved in the judgment. As 
to the mode of determining the amount involved where there are 
several parties in equity or in admiralty with distinct interests, or 
where judgment goes for defendant, see Smith Purifier Co. v. Mc« 
Groarty, 136 U. S. 237 ; Handley v. Stutz, 137 U. S. 366 ; Clay v. Eield, 
138 U. S. 464 ; Henderson v. Coal Co., 140 U. S. 25 ; Gorman v. Havird, 
Id. 943. If a case is dismissed for want of jurisdiction, the jurisdic- 
tional point may be reviewed by the Supreme Court, irrespective of the 
amount involved. 25 Stat, at Large, 693. 

* Established by act of March 3, 1891, 26 Stat, at Large, 826. 



THE JUDICIAL DEPARTMENT. 149 

General Principles, — The Federal courts exercise the 
jurisdiction conferred upon them, and restrain their action 
within it, according to certain general principles, some of 
which are declared by statute, but the most of which arise 
from a consideration of the general nature of the constitu- 
tional structure, and from rules of comity recognized and 
acted upon between independent jurisdictions, or between 
jurisdictions having concurrent authority, according as the 
case may be. The principal of these may be here mentioned. 

The Law Administered. — It has been mentioned in 
another place that each of the several States has a com- 
mon law of its own, derived in the case of most of them 
from the common law of England, but modified more 
or less in adoption by circumstances, usage, or statutes. 
This common law determines to a large extent the civil 
rights of the people, and it also makes many acts punish- 
able as crimes. But the United States as such can have 
no common law. It derives its powers from the grant of 
the people made by the Constitution, and they are all to 
be found in the written law, and not elsewhere. 1 It must 
therefore find its power to punish crimes in laws of Con- 
gress passed in pursuance of the Constitution, defining the 
offences and prescribing what courts shall have jurisdiction 
over them. No act can be a crime against the United 
States which is not made or recognized as such by Federal 
Constitution, law, or treaty. 2 But the Federal courts sit- 
ting in the several States, where their jurisdiction depends 
upon the character or residence of the parties who sue or 
are sued, administer for the most part the local law, and 
they take notice of the State common law, usages, and 
statutes, and apply them aS the State courts would apply 
them in like controversies. 8 In all such cases, if the de- 

1 Wheaton v. Teters, 8 Pet. 591, 658 ; Bucher v. Cheshire R. R. Co., 
125 U. S. 555. 

2 United States r. Hudson, 7 Cranch, 32. 

8 Livingston's Lessee u. Morse, 7 Pet. 469; Tioga R, R. O0.1 
Blossburg, &c. R. R. Co., 20 Wall. 137 ; Case v. Kelly, 133 l\ S 81. 



150 CONSTITUTIONAL LAW. 

cisions of the State courts afford precedents for their guid- 
ance, the Federal courts are to follow them for uniformity, 
and the State decisions will thus become the final rule and 
authority on questions of State law, for like reasons to 
those which require finality to Federal decisions on ques- 
tions of federal law. 1 And the Federal courts will be 
particularly careful to follow State decisions on questions 
involving the title to land or other permanent property. 2 
It is therefore a general rule, that, upon questions of the 
construction, operation, or force of any provision of the 
State constitution or laws, or of the validity of any State 
enactment, or any power, right, privilege, or exemption 
claimed under State authority, or of the force or applica- 
tion of the local common law or usages, the decisions of 
the State courts will furnish the rule of decision for the 
Federal courts, 3 and if the judgments of the State court of 
2ast resort are found to be in conflict, the Federal courts 
will follow the last settled adjudications. 4 

But there are certain cases in which this rule cannot be 
applied, because the reasons on which it rests are inappli- 
cable. It cannot, for example, be applied in any case 
where the decision of the State court involved a question 
of national authority, or any right, title, privilege, or 
exemption derived from or claimed under the Constitu- 
tion or any law or treaty of the United States. 5 Nor 

1 Townsend v. Todd, 91 U. S. 452 ; Elmwood v. Marcy, 92 U. S. 
289 ; Railroad Co. v. Georgia, 98 U. S. 359. 

2 Irvine v. Sim's Lessee, 3 Dall. 425 ; "Walker v. Harbor Commis- 
sioners, 17 Wall. 648. A single judgment of a State court on a question 
of local law, unless it has become a rule of property, is not conclusive 
on a Federal court, though entitled to respect. Gibson v. Lyon, 115 
U. S. 439. 

3 Shelby v. Guy, 11 Wheat. 361 ; Elmwood v. Marcy, 92 U. S. 289; 
Bucher v. Cheshire R. R. Co. 125 U. S. 555; Gormley v. Clark, 134 
U. S. 338; Detroit v. Osborne, 135 U. S. 492; Leeper v. Texas, 139 
U. S. 462; Bauserman v. Blunt, 147 U. S. 647. 

4 Green v. Neal's Lessee, 6 Pet. 291 ; Suydam v. Williamson, 24 
How. 427. See Fairfield v. Gallatin, 100 U. S. 47. 

* State Bank v. Knoop, 16 How, 369; Jefferson Branch Bank v. 






THE JUDICIAL DEPARTMENT. 151 

caD it be applied to questions not dependent upon local 
statutes or usages ; such, as the construction, operation, 
and negotiability of bills of exchange and other commer- 
cial contracts, contracts of insurance and bailment, and 
questions of injury dependent on principles which are 
of general recognition. 1 Nor are State decisions upon 
the validity or construction of a State statute bindiug 
when the statute is in the nature of a contract, and pri- 
vate rights have accrued under it, or when contracts 
have been made under it sanctioned by State decisions 
afterwards overruled. 2 So, if when the contract is made 
the State courts have made no ruling upon the statute, or 
if their rulings are conflicting, the Federal courts will de- 
termine for themselves, independently of State decisions, 
its construction and validity. 3 

The States cannot enlarge the Federal jurisdiction, and 
confer authority over new cases upon the Federal courts. 
But the Federal laws, nevertheless, recognize such new 
rights as are given by State statutes, and administer 
remedies in respect to them when cases arise over which 
they have jurisdiction under the laws of Congress. 4 For 
example, where a State statute gives an action in its 

Skelley, 1 Black, 436 ; New Orleans Water Works v. La. Sugar Co., 
125 U. S. 18. The question in these cases was whether a State statute 
impaired the obligation of a contract based on a previous statute. 
See also Yick Wo v. Hopkins, 118 U. S. 356. 

1 Chicago v. Robbins, 2 Black, 418; Boyce v. Tabb, 18 Wall. 546; 
Venice v. k unlock, 92 U. S. 494; Pana v. Bowler, 107 U. S. 529; 
Myrick v. Mich. Cent. R. R. Co., 107 U. S. 102; Liverpool, &c. Nav. 
Co. v. Phenix Ins. Co., 129 U. S. 397. 

2 Gelpcke v. Dubuque, 1 Wall. 175 ; Olcott v. Supervisors, 16 Wall. 
678. 

3 Burgess v. Seligman, 107 IT. S. 20; Pleasant T'p v. Ins. Co., 138 
IT. S. 67; Knox County v. Ninth National Bank, 147 U. S. 91. See 
Enfield v. Jordan, 119 U. S. 680. 

4 Ex parte McNiel, 18* Wall. 236; Clark v. Smith, 13 Pet. 195 J 
Holland v. Challen, 110 U. S. 15 ; Ridings v. Johnson, 128 V. S. 212; 
Whitehead v. Shattuck, 138 U. S. 146; Scott r. Nerly, 140 l\ S. 106: 
Catos v. Allen, 149 U. S. 451. 



152 CONSTITUTIONAL LAW. 

courts for the recovery of damages where death has been 
caused by wrongful act, neglect, or default, the party 
entitled to bring the action may at his option sue in the 
Federal court, if, by reason of citizenship or alienage, he 
would be at liberty to enforce other rights in that court. 1 
On the other hand, Congress can confer no part of the 
Federal judicial power on the State courts, or on any 
courts not established by its own authority ; 2 and a State 
cannot give to its own courts authority to enforce or 
assist in the enforcement of a law of Congress, such, for 
example, as the Fugitive Slave Law. 3 t 

Conflict of Jurisdiction. — In strictness there can be 
no such thing as a conflict of laws between State and 
nation. The laws of both operate within the same ter- 
ritory, but if in any particular case their provisions are 
in conflict, one or the other is void. If a law of Congress 
is passed upon a subject which is within its constitutional 
powers, any State legislation opposed to it is a mere nul- 
lity. For this reason State statutes which in their opera- 
tion would impede the execution of the Fugitive Slave 
Law were mere futile attempts to make laws, and were 
to be held void by the State judiciary as well as by the 
Federal. 4 So are all State laws which tend to impede or 
obstruct the laws passed by Congress under its power to 
regulate commerce, 5 all which undertake to levy taxes on 



1 Railway Co. v. Whitton, 13 Wall. 270. 

2 Martin v. Hunter's Lessee, 1 Wheat. 304 ; Stearns v. United 
States, 2 Paine, 300. 

3 Prigg v. Pennsylvania, 16 Pet. 539. Yet State courts, with their 
consent, may be invested with jurisdiction of some matters arising 
under the laws of the United States ; e. g., proceedings in eminent 
domain. United States v. Jones, 109 U. S. 513. And State judicial 
officers may be authorized by Congress to perform duties incidental to 
the judicial power, such as taking affidavits, naturalizing aliens, etc. 
Robertson v. Baldwin, 165 U. S. 275. 

4 Sim's Case, 7 Cush. (Mass.) 285; Bushnell's Case, 8 Ohio St. 77. 
6 State v. Steamship Constitution, 42 Cal. 578 ; Council Bluffs v. 

Railroad Co., 45 Iowa, 338 ; Foster v. County Commissioners, 7 Minn. 



THE JUDICIAL DEPARTMENT. 153 

the means selected by the general government for use in 
the exercise of its essential powers, 1 on its land, 2 on the 
franchises of corporations created by it, 3 and so on. On 
the other hand, a Federal enactment taxing a State or 
its municipal corporations is inoperative, 4 and so is one 
undertaking to establish regulations of local commerce 
within the States, as it cannot interfere with the opera- 
tion of State laws on the same subject. 5 In these cases 
the Federal and State courts, if the question came before 
them, would recognize the same rule, and each adminis- 
ter the same law. If they chanced to differ in opinion, 
an appeal to the Federal Supreme Court must determine 
the controversy. 

But questions of much delicacy sometimes arise, when 
the Federal and State courts, under their concurrent au- 
thority, may find their respective jurisdictions invoked in 
the same controversy. This might lead to collisions, and 
to unseemly and perhaps dangerous controversies, if the 
action of the courts were not directed by certain rules of 
good sense and comity devised to preserve harmony and 
insure an orderly administration of justice. 

The most important of these rules is that the court 
which first obtains jurisdiction of a controversy by the 
service of process, will not be interfered with by the 
other in the exercise of that jurisdiction until final judg- 
ment and execution. 6 The Federal courts will not there- 

140; State Treasurer v. Railroad Co., 4 Houst. (Del.) 158, and cases 
cited ante, p. 71 et seq. 

1 Palfrey v. Boston, 101 Mass. 329; Montgomery Co. v. Elston, 32 
Ind. 27 ; and cases ante, p. 62. 

2 Van Brocklin v. Tennessee, 117 U. S. 151. 

8 California v. Central Pac. R. R. Co., 127 U. S. 1. 

4 United States v. Railroad Co., 17 Wall. 322. 

5 United States v. Do Witt, 9 Wall. 41 ; License Tax Cases, 5 
Wall. 462. 

c Heidretter v. Oil-Cloth Co., 112 U. S. 294 : Mallett v. Dextor, 1 
Curt. 178 ; Tobey v. Bristol, 3 Story, 800; Wadleigh v. Yoazio.3 Sum. 
165 ; Shoemaker v. French, Chase's Dec 305 : The (Ylostino, 1 l>iss. 1; 
Ruggles t\ Simonton, 3 Biss. 325; Daly v, The Sheriff, 1 Woods, 175; 



154 CONSTITUTIONAL LAW. 

fore enjoin the proceedings in a suit in a State court, nor 
a State court those in a Federal court. 1 In every respect 
except where the acts of Congress have made special 
provision, the courts of the State and of the United 
States are as distinct and independent in the exercise of 
their powers as the courts of two separate and indepen- 
dent nations. 2 Therefore, where property is in the offi- 
cial custody of the ministerial officer of the courts of one 
jurisdiction, it cannot be taken from his custody on re- 
plevin or other process issued by the courts of the other, 3 
even though it be alleged that the officer holding it 
'seized on process against one person the property of an- 
other. 4 The rule applies where the property and fran- 

Sharon v. Sharon, 84 Cal. 424. This remark will of course be under- 
stood as subject to tbe right to remove causes from the State to the 
Federal courts in the cases provided by law. 

1 Diggs v. Wolcott, 4 Cranch, 179; City Bank of New York v. 
Skelton, 2 Blatch. 14 ; Ex parte Cabrera, 1 Wash. C. C. 232 ; Rorer's 
Inter-State Law, 2d ed., 17-21. But a prosecuting attorney maybe 
enjoined from proceeding under a statute which the United States 
Supreme Court has held bad. Tuchman v. Welch, 42 Fed. Rep. 548. 
While a State court cannot thus be directly compelled by a Federal 
court to set aside an order, yet in a case where it has jurisdiction of 
the parties and subject-matter, a Federal court may afford equitable 
relief against a State court's determination, where an imposition has 
been practised upon that court, and the power conferred by it has 
been fraudulently exercised. Arrowsmith v. Gleason, 129 U. S. 86; 
Johnson v. Waters, 111 U. S. 640. 

2 Rogers v. Cincinnati, 5 McLean, 337, 339 ; Riggs v. Johnson 
County, 6 Wall. 166. 

3 Taylor v. Carryl, 20 How. 583. Nor can the possession be dis- 
turbed by proceedings subsequently begun in a probate court after 
the death of the claimant. Rio Grande R. R. Co. v. Gomila, 132 
U. S. 478. 

4 Freeman v. Howe, 24 How. 450 ; Covell v. Heyman, 111 U. S. 
176 ; The Oliver Jordan, 2 Curt. 414. But the party claiming the 
property may at his election sue the officer in trespass in such case, 
except where the officer has obeyed a writ which gave him no discre- 
tion, Buck v. Colbath, 3 Wall. 334 ; or he may sue his bond, Lammon 
v. Feusier, 111 U. S. 17; or he may apply to the equity side of the 
Federal court for the goods or the proceeds. Krippendorf v. Hyde^ 
110 U. S. 276; Gumbel v. Pitkin, 124 U. S. 131. 



THE JUDICIAL DEPARTMENT. 155 

chises of a corporation have been taken judicial control 
of by a State court and ordered sold ; 1 and also where 
property is in the hands of a receiver appointed by a 
court ; 2 and any attempt to disturb the possession of the 
receiver, except by permission of the court appointing 
him, will be a contempt of the authority of the court. 3 

The possession of the State courts, however, will not be 
allowed to defeat claims under the United States revenue 
laws, or under laws imposing forfeitures for offences. 4 

Essential Powers. — The Federal courts have all the 
powers which inhere in courts in general, and may exer- 
cise them for the full enforcement of their jurisdiction, 
until the judgments they render are performed or satis- 
fied. 5 For this purpose they are authorized by law to 
issue all the customary writs. 6 But they cannot exercise 
State powers, even though without doing so they are 
powerless to enforce their judgments. They may compel 
officers to levy taxes in proper cases, to satisfy judgments 
rendered by them against municipal corporations ; 7 but 
they cannot appoint officers to make the levies when there 
are none to act. 8 

Territorial Courts. — The provisions of the Constitution 
which define the limits of the judicial power have no appli- 
cation to the Territories. It is therefore competent for 
Congress to create courts for the Territories, and confer 
upon them such jurisdiction as may seem necessary or 

1 Fox v. Hempfield R. R. Co., 2 Abb. U. S. 151. 

2 Wiswall v. Sampson, 14 How. 52. Or an administrator. Byers 
t?. McAuley, 149 U. S. 608. 

3 De Visser v. Blackstone, 6 Blatch. 235; Wiswall v. Sampson, 14 
How. 52 ; In re Tyler, 149 U. S. 164. But see Moran v. Sturges, 154 
U. S. 256. 

4 United States v. The Reindeer, 2 Cliff. 57. 

5 Bank of United States u. Halstead, 10 Wheat. 51. 
6Bev. Stat, of U. S., § 716. 

7 Von Hoffman v. Quincy, 4 Wall. 535 ; Memphis v. Brown, 97 
U. S. 300. 

8 Bees v. Watertown, 19 Wall. 107 ; Heine v. Commissioners, IS 
Wall. 655. 



156 COKSTITUTIOKAL LAW. 

proper. And these courts are commonly empowered to 
exercise within the Territories all the powers which within 
the States are exercised by both the State and Federal 
courts. 1 They are created by Congress, but the practice, 
pleadings, and forms and modes of proceeding, are left 
to be regulated by the territorial legislatures. 2 

Courts-Martial. — It is competent for Congress, by the 
rules and articles of war, to provide for the ordering of 
courts-martial for the trial of offences arising in the mili- 
tary and naval service ; 3 and these courts, except as may 
be otherwise provided, will execute their duties and regu- 
late their mode of proceeding by the customary military 
law. 4 But a person not enrolled or liable to be enrolled 
for service cannot be subjected to the jurisdiction of such 
courts ; 5 nor can the courts proceed against those who 
are liable without giving notice and an opportunity of 
defence to the accused. 6 Where a court-martial proceeds 
without authority, and restrains a party of his liberty or 
inflicts punishment, all the parties responsible for the 
action are liable to suits therefor in the common law 
courts. 7 The jurisdiction of such courts may always be 
inquired into by civil courts, and a person held under 
their rules discharged if jurisdiction is wanting. 8 

Military Courts or Commissions. — Offences against 
martial law and the laws of war, and all acts not justified 
by the laws of war, which are calculated to impede or 
obstruct the operations of the military authorities, or to 

1 American Ins. Co. v. Canter, 1 Pet. 511 ; Clinton v. Englebrecht, 
13 Wall. 434 ; Gon-Shay-Ee, Petitioner, 130 U. S. 343. 

2 Hornbuckle v. Toombs, 18 Wall. 648; Clough v. Curtis, 134 U. S. 
361. 

3 Re Bogert, 2 Sawyer, 396 ; Johnson v. Sayre, 158 U. S. 109. 

4 Martin v. Mott, 12 Wheat. 19. 

5 Wise v. Withers, 3 Cranch, 331. 

6 Meade v. Deputy Marshal, 2 Car. Law Repos. 320. 

7 Milligan v. Hovey, 3 Biss. 13. See Mostyn v. Fabrigas, Cowp. 
161. 

• 8 Li re Grimley, 137 U. S. 147. 



THE JUDICIAL DEPARTMENT. 157 

render abortive any attempt by the government to enforce 
its authority, may be punished by military courts or 
commissions organized by the President as commander-in- 
chief, or by the immediate military commander, or estab- 
lished under the authority of Congress. But these 
tribunals cannot try offences against the general laws 
when the courts of the land are in the performance of 
their regular functions, and no impediment exists to a 
lawful prosecution there. 1 An impediment does exist, 
however, when martial law is lawfully declared ; 2 and 
this creates an exception to the general rule that the mili- 
tary in times of peace must be in strict subordination to 
the civil power, and in times of war also, except on the 
theatre of warlike movements. 8 The military tribunals 
may also take cognizance of offences alleged to have been 
committed by soldiers upon citizens within the field of 
military operations against an armed rebellion, while the 
civil law is for the time suspended, and to the exclusion 
of the ordinary jurisdiction when restored. 4 

Political Questions. — ( Over political questions the courts 
have no authority, but must accept the determination of 
the political departments of the government as conclusive. 
Such are the questions of the existence of war, the resto- 
ration of peace, 5 the de facto or rightful government of 
another country, 6 the authority of foreign ambassadors 
and ministers, 7 the admission of a State to the Union, 8 
the restoration to constitutional relations of a State lately 
in rebellion, 9 the extent of the jurisdiction of a foreign 

1 Milligan, ex parte, 4 Wall. 2. 

2 Luther v. Borden, 7 How. 1. 
8 1 Bl. Com., 413-415. 

4 Coleman v. Tennessee, 97 U. S. 509. 

5 United States v Anderson, 9 Wall. 56. 

6 The Hornet, 2 Abb. U. S. 35 ; Gelston v. Hoyt, 3 Wheat. 246. 

7 Foster v. Neilson, 2 Pet. 253. 

8 See Luther v. Bordon, 7 How. 1 ; Marsh v. Burroughs, 1 Woods> 
463. 

9 Georgia v. Stanton, 6 Wall. 50. 



158 CONSTITUTIONAL LAW. 

power, 1 the jurisdiction of the United States over an 
island in the high seas, 2 the right of Indians to recogni- 
tion as a tribe, 3 and so on. 

Final Authority in Construction. — The several depart- 
ments of the government are equal in dignity and of 
co-ordinate authority, and neither can subject the other 
to its jurisdiction, or strip it of any portion of its consti- 
tutional powers. But the judiciary is the final authority 
in the construction of the Constitution and the laws, and 
its construction should be received and followed by the 
other departments. This results from the nature of its 
jurisdiction; questions of construction arise in legal con* 
troversies, and are determined by the courts, and when 
determined the courts have power to give effect to their 
conclusions. Their judgments thus become the law of 
the land on the points covered by them, and a disregard 
of them, whether by private citizens or by officers of the 
government, could only result in new controversy, to be 
finally determined by the judiciary in the same way. But 
the courts have no authority to pass upon abstract ques- 
tions, or questions not presented by actual litigation, and 
have therefore nothing to do with questions which relate 
exclusively to executive or legislative authority; nor is 
there any method in which their opinions can be consti- 
tutionally expressed, so as to have binding force upon 
either the executive or the legislature, when the question 
presents itself, not as one of existing law, but as one of 
what it is proper or politic or competent to make law for 
the future. ;The judiciary, though the final judge of what 
the law is, is not the judge of what the law should be. 4 

1 Williams v. Suffolk Ins. Co., 13 Pet. 415 ; In re Cooper, 143 U. S. 
472. It is different when the question concerns the boundary between 
a Territory and a State in the Union. United States v. Texas, 143 
U. S. 621. 

2 Jones v. United States, 137 U. S. 202. 

s The Kansas Indians, 5 Wall. 737 ; United States v. Holliday, 3 
Wall. 407. 

4 Some few of the States make provision by their constitutions 



THE JUDICIAL DEPARTMENT. 159 

It is very proper, however, that the judiciary, in passing 
upon questions of law which have been considered and 
acted upon by the other departments, should give great 
weight to their opinions, especially if they have passed 
unchallenged for a considerable period. 1 The judiciary 
have often yielded to it when the correctness of a practical 
construction of the law by the executive departments, in 
the performance of their own duties, was in question ; 2 
but they cannot do this when, in the opinion of the court, 
the construction is plainly in violation of the Consti- 
tution. 3 

whereby the executive or the legislature may call upon the highest 
court of law of the State for its opinion upon important questions as a 
guide to their own action. 

1 Stuart u. Laird, 1 Cranch, 299 ; Bank of United States v. Halstead, 
10 Wheat. 51, 63 ; United States v. Healey, 160 U. S. 136. 

2 Edwards's Lessee v. Darby, 12 Wheat. 210; Surgett v. Lapice, 8 
How. 48 ; Bissell v. Penrose, 8 How. 317 ; Union Ins. Co. v. Hoge, 21 
How. 35 ; United States ..v. Gilmore, 8 Wall. 330 ; United States v. 
Moore, 95 U. S. 760. 

8 Story on Const., § 407 ; Cooley, Const. Lim., 6th ed., 81. 



160 CONSTITUTIONAL LAW. 



CHAPTER VII. 

CHECKS AND BALANCES IN GOVERNMENT, 

What they are. — The American system of government 
is an elaborate system of checks and balances. As enu- 
merated by one of the early statesmen of the country, 
these are as follows : — First, the States__are_bal.anced 
against the general government. Second, the House of 
Representatives is balanced against the Senate, and the 
Senate against the House. Third, the e xecutive authority 
is in some degree balanced against the legislature. Fourth, 
the judiciary is balanced against the legislature, the ex- 
ecutive , and the State governments. Fifth^the Senate is 
balanced against the President in all appointments to 
office, and in all treaties. Sixth, the people hold in their 
own hands the balance against their own representatives 
by periodical elections. Seventh, the legislatures of the 
several States are balanced against the Senate by sexen- 
nial elections. Eighth, the electors are balanced against 
the people in the choice of President and Vice-President. 
And this, it is added, is a complication and refinement of 
balances which is an invention of our own, and peculiar 
to this country. 1 

The invention, nevertheless, was suggested by the Brit- 
ish constitution, in which a system almost equally elabo- 
rate was then in force. In its outward forms that system 
still remains ; but there has been for more than a century 
a gradual change in the direction of a concentration of 
legislative and executive power in the popular House of 
Parliament, so that the government now is sometimes said 
with no great departure from the fact, to be a government 
1 Letter of John Adams to John Taylor, Works, vi. 467. 



CHECKS AND BALANCES IN GOVERNMENT. 161 

by the House of Commons. The judiciary, indeed, retains 
its independence and power, and these have been some- 
what strengthened as bills of attainder are discontinued, 
and as the judicial authority of the House of Lords is 
narrowed by legislation. 

Electors of President, — Of the checks in American 
government above enumerated, some have proved wholly 
illusory. This is emphatically true of the eighth. The 
theory of the Constitution is that there shall be chosen by 
each State a certain number of its citizens, enjoying the 
general confidence of the people, who shall independently 
cast their suffrages for President and Vice President of the 
United States, according to the dictates of their individual 
judgments. This theory was followed in the first three 
presidential elections, but from that time it fell into prac- 
tical disfavor, and now not only is the theory obsolete, 
but it would be thought in the highest degree dishonorable 
if an Elector were to act upon it. In practice, the per- 
sons to be voted for are selected by popular conventions, 
in advance of the choice of Electors, and these officers act 
as mere automata in registering the will of those who 
selected them. 

States and Nation. — The Constitution itself imposes 
very effectual checks on the powers of the States for the 
protection of federal jurisdiction, b}- expressly restraining 
them from the exercise of some of the most important 
powers of sovereignty, and by subordinating others to the 
authority of Congress. These are all alluded to else- 
where. To maintain these unimpaired, the federal gov- 
ernment is made, as against the States, the final judge of 
its own powers. Nothing more need be said to show that 
encroachment upon the federal jurisdiction is effectually 
provided against. 

On the other hand, there were various ways in w hich 
the Stales were expected to constitute a balance to tin* 
powers of the federal government. First, in the division 
of [towers between States and nation, the larger portion, 



162 CONSTITUTIONAL LAW. 

including nearly all that touched the interests of the peo- 
ple in their ordinary business relations and in their family 
and soc i al life, were reserved to jthe States. All th at 
related to the family and the domestic relations, the 
administration and distribution of estates, the forms of 
contract and conveyance, the maintenance of peace and 
order in the States, the punishment of common-law of- 
fences, the making provision for education, for public 
highways, for the protection of personal liberty and lib- 
erty of worship, — all these powers were withheld from 
the jurisdiction of the federal government, and retained 
by the States, and their retention was calculated to give 
to the body of the people a larger interest in a proper 
administration of state authority than in that of the nation. 
Second, the States elected the representatives in Congress 
and chose the senators, and these would naturally be ex- 
pected to represent the opinions, feelings, and sentiments 
of their constituents, and to so act in their official posi- 
tions as to avoid all encroachments on the powers of the 
States. The President was also chosen b} r persons selected 
by the States for the purpose, who would naturally reflect 
the local views. Third, the States were given the privi- 
lege to originate amendments to the Constitution of the 
United States whenever the}' should be found necessary, 
and it was expected that they would make use of this 
privilege if at any time the federal government should be 
found relatively too strong, or should be thought to have 
unwarrantably extended its jurisdiction. From the nature 
of the case, however, it was impossible that the powers 
reserved to the States should constitute a restraint upon 
the increase of federal power, to the extent that was at 
first expected. The federal government was necessarily 
made the final judge of its own authority, and the executor 
of its own will, and any effectual check to the gradual am- 
plification of its jurisdiction must therefore be found in the 
construction put by those administering it upon the grants 
of the Constitution, and In their own sense of constitu- 



CHECKS AND BALANCES IN GOVERNMENT. 163 

tional obligation. And as the true line of division between 
federal and state powers has from the very beginning 
been the subject of contention, and of honest differences of 
opinion, it must often happen that to advance and occupy 
some disputed ground will seem to the party having the 
power to do so a mere matter of constitutional duty. 
The effectual checks upon the encroachment of federal 
upon state power must therefore be looked for, not irt 
state power of resistance, but in the choice of representa- 
tives, senators, and presidents holding just constitutional 
views, and in a federal Supreme Court with competent 
power to restrain all departments and all officers within 
the limits of their just authority, so far as their acts may 
become the subjects of judicial cognizance. 1 Such amend- 
ments to the Constitution as have hitherto been made have 
originated with the Congress, and, with the single excep- 
tion of that which takes from the federal judiciary the 
power to take cognizance of suits by individuals against 
States, none of them has taken from the United States 
any real authority. 

Some other checks which are continuous and more 
effective are the following. 

Judicial Restraints on Legislative Encroachments. — 
The business of the courts is, to apply the law of the land 
in such controversies as may arise and be brought before 
them. Their authority is co-ordinate with that of the 
legislature, neither superior nor inferior; but each uwith 
equal dignity must move in its appointed sphere.- But 
the judiciary, in seeking to ascertain what the law is which 
must be applied in any particular controversy, may pos- 
sibly find that the will of the legislature, as expressed in 

1 Tt is no doubt true that, "in reference to all doubtful questions 
incident to our governmental system, the Line of approach [should] 
be kept carefully in the foreground, and any intrusion thereon most 
vigilantly avoided."— Rorer, Inter-State Law, 2d. Ed., p. 12, 

a Lindsay a, Commissioners 2 Bay (^ C), 01; Bates v. Kimball. 
2 Chip (Vt)77. 



164 CONSTITUTIONAL LAW. 

statute form, and the will of the people, as expressed in 
the Constitution, are in conflict, and the two cannot stand 
together. In such a case, as the legislative power is con- 
ferred by the Constitution, it is manifest that the delegate 
has exceeded his authority ; the trustee has not kept within 
the limits of his trust. The excess is therefore inopera- 
tive, and it is the duty of the court to recognize and give 
effect to the Constitution as the paramount law, and, by 
refusing to enforce the legislative enactment, practically 
nullify it. 

The obligation to perform this duty, whenever the con- 
flict appears, is imperative ; but the duty is nevertheless 
a delicate one, because the court in declaring, a statute 
invalid must necessarily overrule the decision of the legis- 
lative department, made in the course of the performance 
of its peculiar duties, and where it must be assumed to 
have acted on its best judgment. The task, therefore, is 
one to be entered upon with caution, reluctance, and hesi- 
tation, and never until the duty becomes manifestly im- 
perative. The following general propositions will be 
found to state the obligations of duty and of forbearance 
for such cases which are generally recognized. 

1. The duty to pass upon a question of constitutional 
law may devolve upon a court of any grade, and of either 
the Federal or the State jurisdiction. Wherever the ques- 
tion can arise in court of the conformity of a statute to 
the Constitution, the court to whom the question is ad- 
dressed must in some manner dispose of it, and the power 
of the court to apply the law to the case necessarily 
embraces the power to determine what law controls. In 
the absence of authoritative precedents, there can be no 
other test of this than the judgment of the court. The 
validity of a Federal statute may therefore be a necessary 
question for consideration in a State court, and that of a 
State statute in a Federal court. Nevertheless, when the 
court to whom the question is addressed is not the court 
of last resort in respect thereto, it may well be expected 



CHECKS AND BALANCES IN GOVERNMENT. 165 

to proceed with more than ordinary caution and hesitation, 
and to abstain altogether from declaring a statute invalid 
unless in the clearest cases, especially if, without serious 
detriment to justice, the decision can be delayed until 
the superior court can have opportunity to pass upon 
it. There may be cases where, by inadvertence or acci- 
dent, a bill which has gone through all the forms required 
for valid legislation is, nevertheless, clearly and without 
question invalid ; but except in such cases the spectacle of 
an inferior magistrate, having merely police or other lim- 
ited jurisdiction, assuming to pass judgment upon the leg- 
islation of his State or country, and declare it invalid, can 
only.be ludicrous. 1 

2.\The judicial sense of propriety and of the importance 
of the occasion will generally incline the court to refuse 
a consideration of a constitutional question without the 
presence of a full bench of judges } With many courts 
this is a rule to which few exceptions are admitted, and 
those only which seem to be imperative. 2 

3. (Neither as a rule will a court express an opinion 
adverse to the validity of a statute, unless it becomes abso- > 
lutely necessary to the determination of a cause before \\s 
Therefore, in any case where a constitutional question is 
raised, if the record presents some other and clear ground 
upon which the court may rest its judgment, and thereby 
render the constitutional question immaterial to the case, 
the court will adopt that course, and the question of con- 

1 Some courts have intimated that only the superior courts should 
assume to deny validity to a statute. Ortman v. Greenman, 4 Mich. 
291. Compare Mayherry v. Kelly, 1 Kans. 11 G. 

2 Briscoe v. Bank of Kentucky, 8 Tot. US. 

8 Hoover v. Wood, 9 Tnd. 286 ; Smith v. Speed, 50 Ala. 277 ; Board 
of Education v. Mayor, 72 Ga. 353. Where the constitutional question 
was not raised until after denial of rehearing in a State Supreme court, 
the United States Supreme court will not consider it. Butler r. Gage, 
138 U.S. 52. The validity of a. law ought not to he determined in 
advance of its actual operation. So held on application to restrain the 
publishing of returns o( the vote under an alleged invalid local optiou 
Statute. Clayton v. Calhoun, 7C> Ga. 270. 



166 CONSTITUTIONAL LAW. 

stitutional power will be left for consideration until a case 
arises which cannot be disposed of without considering 
it, and when, consequently, a decision upon such question 
will be unavoidable. 1 This course has not always been 
followed ; but it has seldom occurred that a constitutional 
question has been considered settled, or been allowed to 
remain without further dispute and question where the 
opinion given upon it was rendered in a case not neces- 
sarily requiring it. Want of jurisdiction of the particular 
case is always reason why the court should abstain from 
expressing opinions on other questions which parties may 
attempt to raise. 

4. The court will not listen to an objection made to the 
constitutionality of an act by one whose rights are not 
affected by it, and who consequently can have no interest 
in defeating it. 2 } For example, one who has received com- 
pensation for property appropriated by statute to a public 
use will not be suffered afterwards to dispute the constitu- 
tional validity of the statute. 3 The statute is assumed to 
be valid until some one complains of it whose rights it 
invades. The power of the court can be invoked only 
when it is found necessary to secure and protect a party 
before it against an unwarranted exercise of legislative 
power to his prejudice. 4 

5. Nor can a court declare a statute unconstitutional 

1 Ex parte Randolph, 2 Brock. 447 ; Freer v. Ford, 6 N. Y. 177. 

2 Marshall v. Donovan, 10 Bush (Ky.), 681 ; Mobile, &c. R. R. Co. 
v. State, 29 Ala. 586 ; Clough v. Curtis,' 134 U. S. 361. 

3 Embury v. Connor, 3 N. Y. 511 ; Haskell v. New Bedford, 108 
Mass. 208. 

* Wellington, Fetitioner, 16 Fick. (Mass.) 96 ; State v. Rich, 20 Mo. 
393 ; Burnside v. Lincoln Co. Ct., 86 Ky. 423. To pass upon the con- 
stitutionality of an act is the ultimate and supreme function of the 
courts. "It is legitimate only in the last resort, and as a necessity in 
the determination of a real, earnest, and vital controversy between 
parties. It was never thought that, by means of a friendly suit, a party 
beaten in the legislature could transfer to the courts an inquiry as to 
the constitutionality of the legislative act." Chicago, &c. Ry. Co. v. 
Wellman, 143 U. S. 339. 



CHECKS AND BALANCES IN GOVERNMENT. 167 

and void when the objection to it is merely that it is unjust 
and oppressive, and violates rights and privileges of the 
citizen, unless it can be shown that such injustice is pro- 
hibited, or such rights and privileges guaranteed by the 
Constitution. The propriety or justice or policy of legis- 
lation, within the limits of the Constitution, is exclusively 
for the legislative department to determine ; and the mo- 
ment a court ventures to substitute its own judgment for 
that of the legislature, it passes beyond its legitimate 
authority, and enters a field where it would be impossible 
to set limits to its interference, except as should be pre- 
scribed in its own discretion. 1 The protection against 
unwise or oppressive legislation, within constitutional 
bounds, is by an appeal to the justice and patriotism of 
the representatives of the people. If this fail, the people 
in their sovereign capacity can correct the evil, but courts 
cannot assume their rights. 2 Thejudiciary can only arrest 
the execution of a statute when it conflicts with the Con- 
stitution. It cannot run a race of opinions upon points of 
right, reason, and expediency with the law-making power. 8 
The question of the validity of a statute must always be 

1 It has been well said by one judge : " If the legislature should 
pass a law, in plain and unequivocal language, within the general 
scope of their constitutional powers, I know of no authority in this 
government to pronounce such an act void, merely because, in the 
opinion of the judicial tribunals it was contrary to the principles of 
natural justice, for this would be vesting in the court a latitndinarian 
authority which might be abused, and would necessarily lead to col- 
lisions between the legislative and judicial departments, dangerous 
to the well-being of society, or at least not in harmony with the 
structure of our ideas of natural government." Commonwealth if. 
McCloskcy, 2 Rawle (Pa.), 374. See Bebee v. State, 6 Ind. 515, 528. 
Many judges think laws laying protective duties are contrary to nat- 
ural justice; but if they were at liberty to decide the validity of 
legislation on such grounds, the ordinary legislation could not be 
carried on except with their assent. 

3 Bennett v. Bull, Baldw. 74; Pennsylvania R R. Co. v. Riblet, 66 
Penn. St. 164. 

3 Madison. &c R. U. Co. v. Whitoncck, 8 Ind. '217 ; Built-. Bead, 13 
Grat. (Va.) 98. 



168 CONSTITUTIONAL LAW. 

one of legislative competency to enact it ; not one of policy, 
propriety, or strict justice. 

6^ Nor can a statute be declared unconstitutional 
merely because in the opinion of the court it violates one 
or more of the fundamental principles of republican lib- 
erty, unless it shall be found that those principles are 
placed beyond legislative encroachment by the provisions 
of the Constitution itself. The principles of republican 
government are not a set of inflexible rules, vital and 
active in the Constitution even when unexpressed ; but 
they are subject to variation and modification from motives 
of policy and public necessity, and it is only in those par- 
ticulars in which experience has demonstrated that any 
departure from the settled course must work injustice and 
confusion, that it is customary to incorporate them in the 
Constitution in such a way as to make them definite rules 
of action and decision. For example the principle that 
taxation and representation go together is important and 
valuable, and should never be lost sight of in legislation ; 
but, as commonly understood, it can never be applied 
universally without admitting every person to the elective 
franchise ; for taxes in some form fall upon all, — the 
rich and the poor, the infant and the adult, the male and 
the female, — and federal taxes reach the unrepresented 
Territories as well as the represented States. And it is 
obvious that, wherever a recognized principle of free 
government requires legislation for its practical applica- 
tion and enforcement, the body that passes laws for the 
purpose must determine, in its discretion, what are the 
needs of legislation and what its proper limits. The courts 
cannot take such principles as abstract rules of law, and 
give them practical force. 1 

7. When a question of Federal constitutional law is 
involved, the purpose of the Constitution, and the object 
to be accomplished by any particular grant of power, are 

1 People v. Draper, 15 N. Y. 532; Baltimore v. State, 15 Md. 376 ,* 
People v. Mahaney, 13 Mich. 498. 



CHECKS AND BALANCES IN GOVERNMENT. 169 

often most important guides in reaching the real intent; 
and the debates in the Constitutional Convention, the dis- 
cussions in the Federalist and in the conventions of the 
States, are often referred to as throwing important light 
on clauses in the Constitution which seem blind or of am- 
biguous import. We may discover from these what the 
general drift of opinion was as to the division line between 
Federal and State power on many subjects, and we can 
sometimes judge from that whether a particular authority 
lies on one side of the line or on the other. But we shall 
be misled if we attempt in this manner to judge of State 
legislative power when the limitations of the Federal Con- 
stitution are not in question. We cannot test the validity 
of any State statute by a general spirit which is supposed 
to pervade the State Constitution, but is not expressed in 
words. Presumptively, when the people of the State, by 
their Constitution, call into existence a legislative depart- 
ment, and endow it with the function of making laws, they 
confer upon it the full and complete legislative power, — 
as full and complete as the people, in the exercise of sover- 
eignty, could themselves have wielded it, — subject only to 
such restrictions as were by the same instrument imposed. 
" The law-making power of the State recognizes no re- 
straints, and is bound by none except such as are imposed 
by the Constitution. That instrument has been aptly 
termed a legislative act by the people themselves in their 
sovereign capacity, and is therefore the paramount law. 
Its object is, not to grant legislative, power, but confine 
and restrain it. Without the constitutional limitations, 
the power to make laws would be absolute. These limi- 
tations are created and imposed by express words, or 
arise by necessary implication. The leading feature oi 
the Constitution is the separation and distribution of the 
powers of the government. Ititakes care to separate the 
executive, legislative, and judicial powers, and to define 
their limits. The executive ('an do no legislative aet, nor 
the legislature any executive act, and neither can exercise 



170 COKSTITUTIONAL LAW. 

judicial authority." 1 Presumptively, therefore, if an act 
of the legislative department is not an encroachment upon 
executive or judicial power, it is valid. To show its in- 
validity, it is necessary to point out some particular in 
which, either in form or substance, it is inconsistent with 
the Constitution. The inconsistency may consist, either, 
(1) in the failure to observe some constitutional form 
which is made essential to a valid enactment, such as the 
taking of the final vote thereon by yeas and nays when the 
Constitution requires it; or (2) in the disregard of an ex- 
press prohibition, as where it consists in a special charter 
of incorporation when the Constitution forbids incorpora- 
tion except under general laws ; or (3) in the disregard 
of some fundamental right declared in the bill of rights, 
as would be a statute compelling support of sectarian wor- 
ship or schools when the Constitution proclaims religious 
liberty. And in all these cases it is not the spirit of 
the Constitution that must be the test of validity, but the 
written requirements, prohibitions, and guaranties of the 
Constitution itself. 2 

8. A statute may sometimes be valid in part and invalid 
in other particulars. This often happens under State con- 
stitutions that require an act to contain but one object, 
which shall be expressed in the title. If in such a case 
the act embraces two objects while the title expresses but 
one, the act will be unconstitutional and void as to the 
one not so expressed. So in the absence of such a require- 
ment the act might be void as to one object because 
the legislation attempted was expressly forbidden by the 
constitution, while in other particulars it was plainly 
within the legislative competency. The general rule there- 
fore is, that the fact that part of a statute is unconstitu- 
tional does not justify the remainder being declared invalid 
also, unless all the provisions are connected in subject- 

1 Sill v. Corning, 15 N. Y. 297 ; Sears v. Cottrell, 5 Mich. 251 ; Dan- 
ville v. Pace, 25 Grat. (Ya.) 1. 

2 Cooley, Const. Lim., 6th ed., 204-209. 



CHECKS AND BALANCES IN GOVERNMENT. 171 

matter, depending on each other, operating together for 
the same purpose, or otherwise so connected together in 
meaning that it cannot be presumed the legislature would 
have passed the act otherwise than as a whole. It is im- 
material how closely the valid and invalid provisions are 
associated in the act ; they may even be contained in the 
same section, and yet be perfectly distinct and separable, 
so that the one may stand though the other fall. 1 If, 
when the unconstitutional portion is stricken out, that 
which remains is complete in itself, and capable of being 
executed in accordance with the apparent legislative intent, 
wholly independent of that which was rejected, it must be 
sustained. But if the intent of the act is to accomplish a 
single purpose only, and some provisions are void, the 
whole must fail unless sufficient remains to effect the object 
without the invalid portion. And if they are so mutually 
connected with and dependent on each other as conditions, 
considerations, or compensations, as to warrant the belief 
that the legislature intended them as a whole, and that, if 
all could not be carried into effect, the legislature would 
not pass the residue independently, then, if some parts are 
unconstitutional, all the provisions that are thus depend- 
ent, conditional, or connected must fall with them. 2 

9. A doubt of the constitutional validity of a statute is 
never sufficient to warrant its being set aside. " It is not 
on slight implication and vague conjecture that the legis- 
lature is to be pronounced to have transcended its powers, 
and its acts to be considered as void. The opposition 
between the Constitution and the law should be such that 
the judge feels a clear and strong conviction of their 



1 Commonwealth??. Hitchings, 5 Gray (Mass.),4S2 ; Hagerstown v. 
Dechert, 32 Md. 369 ; State y. Clarke, 54 Mo. 17. 

2 State v. Commissioners, 5 Ohio St. 497 ; State v. Pousman, 28 
Wis. 541 ; Campau v. Detroit, 14 Mich. 276 ; Willanl r. People, 5 HI. 
461; Commonwealth y. Potts, 79 IVnn. St. 104; Baker V. Braman. 6 
Hill (N. Y.), 47; Polloek r. Farmers' Loan and Trust Co., 158 
U.S. 601. 



172 CONSTITUTIONAL LAW. 

incompatibility with each other." 1 "It is but a decent 
respect due to the wisdom, the integrity, and the patriot- 
ism of the legislative body by which any law is passed, to 
presume in favor of its validity, until its violation of the 
Constitution is proved beyond all reasonable doubt." 2 To 
be in doubt, therefore, is to be resolved, and the resolution 
must support the law. 

This course is the opposite to that which is required of 
the legislature in considering the question of passing a 
proposed law. Legislators have their authority measured 
by the Constitution ; they are chosen to do what it per- 
mits, and nothing more, and they take solemn oath to 
obey and support it. When they disregard its provisions, 
they usurp authority, abuse their trust, and violate the 
promise they have confirmed by an oath. To pass an act 
when they are in doubt whether it does not violate the 
Constitution, is to treat as of no force the most imperative 
obligations any person can assume. A business agent 
who would deal in that manner with his principal's business 
would be treated as untrustworthy ; a witness in court who 
would treat his oath thus lightly, and affirm things con- 
cerning which he was in doubt, would be held a criminal. 
Indeed, it is because the legislature has applied the judg- 
ment of its members to the question of its authority to 
pass the proposed law, and has only passed it after being 
satisfied of the authority, that the judiciary waive their 
own doubts, and give it their support. 3 

10. The validity of legislation can never be made to 
depend on the motives which have secured its adoption, 
whether these be public or personal, honest or corrupt. 
There is ample reason for this in the fact that the people 

1 Fletcher v. Peck, 6 Cranch, 87, 128. 

2 Ogden v. Saunders, 12 Wheat. 213, 270. A court ought to adopt 
such a construction of a statute as will, without doing violence to the 
fair meaning of the words, harmonize it with the Constitution. Gren- 
ada Co. Supervisors v. Brogden, 112 U. S. 261. 

3 Osburn v. Stanley, 5 W. Va. 85 ; Kellogg v. State Treasurer, 44 
Vt. 356. 



CHECKS AND BALANCES IN GOVEENMENT. 178 

have set no authority over the legislators with jurisdiction 
to inquire into their conduct, and to judge what have been 
their purposes in the pretended discharge of the legislative 
trust. This is a jurisdiction which they have reserved to 
themselves exclusively, and they have appointed frequent 
elections as the occasions and the means for bringing these 
agents to account. A further reason is, that to make 
legislation depend upon motives would render all statute 
law uncertain, and the rule which should allow it could not 
logically stop short of permitting a similar inquiry into 
the motives of those who passed judgment. Therefore 
the courts do not permit a question of improper legislative 
motives to be raised, but they will in every instance assume 
that the motives were public and befitting the station. 1 
They will also assume that the legislature had before it 
any evidence necessary to enable it to take the action it 
did take. 2 

11. When a legislative enactment proves to be invalid, 
it is for all legal purposes as if it had never been. 3 It 
can support no contract, it can create no right, it can give 
protection to no one who has acted under it, it can make 
no one an offender who has refused obedience to it. And 



1 Ex parte McCardle, 7 Wall. 506, 514; Doyle v. Insurance Co., 
94 U. S. 535. Courts cannot inquire into legislative motives except 
as they may be disclosed on the face of the acts, or be inferrible from 
their operation considered with reference to the condition of the coun- 
try and existing legislation. Soon Hing v. Crowley, 113 U. S. 703. 
This rule applies to legislation of municipalities. Brown v. Cape 
Girardeau, 90 Mo. 377. 

2 Johnson v. Railroad Co., 23 111. 202 ; Lusher v. Scites, 4 W. Va. 
11. Expert evidence is inadmissible to show that in providing for 
the infliction of the death penalty by electricity the legislature imposed 
a cruel and unconstitutional punishment. People r. Durston, 11 ( .» 
N. Y. 569. 

3 Sumner v. Beeler, 50 Ind. 341 . "An unconstitutional law is not 
a law; it confers no rights; it imposes no duties ; it affords no protec- 
tion; it creates no office; it is, in legal contemplation, as inoperative 
as though it had never been passed." Field, J., in Norton r. Shelby 
County, 118 U. S. 425,442. 



174 CONSTITUTIONAL LAW. 

this is true of any particular provision of a statute which 
proves invalid, while the remainder is sustained. 1 It is 
true that one who assumes to disobey a statute as invalid 
does so at the risk of being punished for his disobedience 
if the law is sustained ; but this is a risk which every one 
takes when he acts in any matter in respect to which the 
law is in doubt. 

Suits against Officers. — The exemption of legislators 
from inquiry into motives would of itself protect them 
against suits by private individuals who may suffer dam- 
age from their action ; but they are also exempt on the 
further ground that the duties they perform are of a public 
nature exclusively, and they are therefore under responsi- 
bility only to the public. There is a like exemption in 
favor of inferior bodies who exercise a quasi legislative 
authority, 2 such as boards of supervisors, county commis- 
sioners, city councils, and the like, though it may be other- 
wise in respect to particular duties with which such bodies 
are sometimes charged for the benefit of individuals, and 
which each member is expressly required to recognize and 
perform. The case of inferior officers exercising severally 
a discretionary duty to individuals is different. They are 
protected while they act in good faith, but they are gen- 
erally held responsible if they take advantage of their 
position to injure another maliciously and without cause. 3 
This is the rule which is applied to election officers who 
are found guilty of having wrongfully refused to register 
voters or to receive their ballots. 4 Mere ministerial 

1 Qooley, Const. Lim., 6th ed., 222. 

2 Baker u. State, 27 Ind. 485 ; Freeport v. Marks, 59 Penn. St. 253. 
8 Bennett v. Fulmer, 49 Penn. St. 155; Billings v. Lafferty, 31 111. 

318; Shoemaker u. Nesbit, 2 Rawle, 201; Parmelee v. Baldwin, 1 
Conn. 313. 

4 Lincoln v. Hapgood, 11 Mass. 350; Jeffries v. Ankeny, 11 Ohio 5 
322; Bevard v. Hoffman, 18 Md. 479; Goetcheus v. Mathewson, 
61 N. Y. 420; Weckerly v. Geyer, 11 S. & R. 35; Miller v. Rucker, 
1 Bush (Ky.), 135 ; Carter v. Harrison, 5 Blackf. (Ind.) 138; Gordon v. 
Farrar, 2 Doug. (Mich.) 411 ; Dwight v. Rice, 5 La. An. 580; State a 



CHECKS AND BALANCES IN GOVERNMENT. 175 

officers must always at their peril keep within the limits 
of the law, for their duties are not discretionary, and the 
law is supposed to make plain for them what their duty is. 
Nor will the immunity of the legislative department cover 
the acts of its ministerial agents with a like shield of protec- 
tion. And this is an important check which the judiciary 
holds upon the law-making departments ; if the members 
are not directly responsible for exceeding their constitu- 
tional authority, the ministerial agents and officers through 
whom the legislature acts will always be so. 1 

Check on the Treaty -making Power. — The full treaty- 
making power is in the President and Senate ; but the 
House of Representatives has a restraining power upon it 
in that it may in its discretion at any time refuse to give 
assent to legislation necessary to give a treaty effect. 
Many treaties need no such legislation ; but when moneys 
are to be paid by the United States, they can be appropri- 
ated by Congress alone ; and in some other cases laws are 
needful. An unconstitutional or manifestly unwise treaty 
the House of Representatives may possibly refuse to aid ; 
and this, when legislation is needful, would be equivalent 
to a refusal of the government, through one of its branches, 
to carry the treaty into effect. This would be an extreme 
measure, but it is conceivable that a case might arise in 
which a resort to it would be justified. 2 

Judiciary and Executive. — From the foregoing it will 
appear that the judiciary has no control whatever over 
legislation, and no power whatever to question its pur- 
pose or animus, provided always that legislation is kept 
within the limits of the constitutional grant. The remark 

Porter, 4 Harr. (Del.) 556 ; Wheeler v. Patterson, 1 N. 11. 88 ; Fausler 
v. Parsons, 6 W. Va. 48G ; Peavey v. Robbins, 3 Jones (X. C), 339 : 
Rail v. Potts, 8 Humph. (Tenn.) 225; Sandera v. Getchell, 76 Me. 158: 
Long v. Long, 57 Iowa, 497. See Murphy v. Ramsey, 114 V. 8. 15 
The Massachusetts, Ohio, and Iowa cases hold the officers responsible 
for refusing a legal ballot, even when they err in good faith. 

1 Stoekdale v. Hansard, 9 Ad. &E1. 1 ; Milligan r. lLo\ey, 3 BiSB. 1\ 

1 See ante, page 118. 



176 • CONSTITUTIONAL LAW. 

is equally true when applied to executive power. "W ithin 
the sphere of his authority under the Constitution the Ex- 
ecutive is independent, and judicial process cannot reach 
him. 1 But when he exceeds his authority, or usurps that 
which belongs to one of the other departments, his orders, 
commands, or warrants protect no one, and his agents be- 
come personally responsible for their acts. The check of 
the courts, therefore, consists in their ability to keep the 
Executive within the sphere of his authority by refusing 
to give the sanction of law to whatever he may do beyond 
it, and by holding the agents and instruments of his un- 
lawful action to strict accountability. 2 

The Executive can have no corresponding authority to 
pass upon the validity of either legislative or judicial ac- 
tion. His judgment of proposed legislation may be ex- 
pressed in his veto, but if that is overruled the Executive 
is as much bound as is any private citizen. He is also 
equally concluded by the judgment of a competent court, 
and it may become his duty as Executive to assist in en- 
forcing a judgment he believes erroneous, should enforce- 
ment by the ordinary process of the court and by its own 
officers become impossible. Nevertheless it is conceivable 
that the Executive may refuse to obey either a statute or 
the judgment of a court. Indeed, such cases have occurred 
in the history of the Federal government, notably, in the 
case of the Georgia Indians, 3 and in cases arising under 

1 Marbury v. Madison, 1 Crancb, 137 ; Hawkins v. Governor, 1 Ark. 
570; State v. Governor, 25 N. J. 331 ; People v. Governor, 29 Mich. 
320; Mauran v. Smith, 8 R. I. 192 ; State v. Warmouth, 22 La. An. 1; 
Rice v. Austin, 19 Minn. 103 ; Smith v. Myers, 109 Ind. 1 ; Bates v. 
Taylor, 87 Tenn. 319; and see ante, p. 121. 

2 Milligan v. Hovey, 3 Biss. 13 ; Kendall v. United States, 12 Pet, 
524 ; Little v. Barreme, 2 Cranch, 170. For the responsibility of high 
executive officers, see Spalding v. Vilas, 161 U. S. 483. And see ante, 
p. 140. The courts will not enjoin a municipal council from passing 
an unconstitutional ordinance, but will enjoin its enforcement. New 
Orleans Water Works Co. v. New Orleans, 164 IT. S. 471. 

* Worcester v. Georgia, 6 Pet. 515 ; Webster's Works, i. 268. The pa- 
pers and documents are collected in Niles's Register, vols, xxxix.-xliv. 



CHECKS AND BALANCES IN GOVERNMENT. 177 

the proclamation of President Lincoln purporting to sus- 
pend the habeas corpus. 1 It can be said of such cases 
only this, that the responsibility of the President for 
a refusal to regard the judicial mandate is on the one 
hand to the people and on the other to the process of 
impeachment. 

Impeachments. — The two very effective restraints which 
the legislature may interpose to the abuse of executive 
and judicial authority are, first, that which consists in its 
control over their jurisdiction, and, second, the proceeding 
by impeachment. Much of executive authority comes, 
not from the Constitution, but from statute, and what 
is thus given may at any time be taken away. The 
same is true of the courts. Some' of them are purely 
statutory courts, and may be modified or abolished ; all 
of them derive the most of their jurisdiction from statutes, 
and whenever this is abused it can be restricted or taken 
away. 2 But it may also be modified or/ taken away on 
grounds of expediency or policy merely. ( Impeachment is 
for the purpose of punishing misconduct. By the Consti- 
tution of the United States the House of Representatives 
has the sole power of impeachment, 3 and the Senate the 
sole power to try its presentments. When the President 
is tried, the Chief Justice shall preside, and no person 
shall be convicted without the concurrence of two thirds 
of the members. 4 Judgment in case of impeachment shall 
not extend further than to removal from office and dis- 
qualification to hold and enjoy any office of honor, trust, 
or profit under the United States ; but the party convicted 
shall nevertheless be liable, and subject to indictment, 
trial, judgment, and punishment according to law, pro- 
vided the impeachable offence is also an indictable of- 

1 Merryman's Case, Taney's Dec. '24(i ; s. o. 9 Am. Law. Keg. 024 f 
14 Law. Rep. n. s. 78. 

8 Ex parte McArdle, 7 Wall. 500. 
8 Const,, Art. I. § 2, el. 5. 
* Const., Art. 1. § ;?, el. 6. 

IS 



178 CONSTITUTIONAL LAW. 

fence. 1 The President's power to grant reprieves and 
pardons does not extend to impeachments. 2 

The offences for which the President or any other officer 
may be impeached are any such as in the opinion of the 
House are deserving of punishment under that process. 
They are not necessarily offences against the general laws. 
In the history of England, where the like proceeding ob- 
tains, the offences have often been political, and in some 
cases for gross betrayal of public interests punishment 
has very justly been inflicted on cabinet officers. It is 
often found that offences of a very serious nature by high 
officers are not offences against the criminal code, but 
consist in abuses or betrayals of trust, or inexcusable 
neglects of duty, which are dangerous and criminal be- 
cause of the immense interests involved and the greatness 
of the trust which has not been kept. Such cases must 
be left to be dealt with on their own facts, and judged 
according to their apparent deserts. 3 

The Veto Power. — The view most commonly taken .of 
the veto power is perhaps that of Mr. Webster, that it is 
" an extraordinary power, to be exercised only in peculiar 
and marked cases " ; that " it was vested in the President, 
doubtless as a guard against hasty and inconsiderate legis- 
lation, and against any act, inadvertently passed, which 
might seem to encroach on the just authority of other 
branches of the government," 4 or, it may be added, on 
the rights of the States or of individuals. The first six 
Presidents made use of it very sparingly, — some of them 
not at all ; but for this an important reason is found in the 
fact that the legislature and the President were generally 
in accord on important measures. It was used more freely 
by President Jackson, and still more freely by Presidents 

1 Const., Art. I. § 3, cl. 7. 2 Const., Art. II. § 2, cl. 1. 

3 The law and the precedents on the subject were largely exam- 
ined on the impeachment trial of President Johnson, and on the pre- 
vious trials of Judges Chase and Peck. See Foster, Com. on the 
Const., ch. xiii. 

4 Webster's Works, I 267. 



CHECKS AND BALANCES IN GOVERNMENT. 179 

Tyler, JoIidsoii, and Hayes. 1 This might well occur, even 
with the same views of the proper functions of the veto, 
since the Presidents last named were confronted with Con- 
gresses of opposing political views, and had occasion to 
consider and pass upon a large amount of legislation that 
was not in accord with their ow r n opinions of what was 
right in policy or sound in constitutional law. The rea- 
sons assigned for the vetoes have seldom been unimportant, 
and have often been the unconstitutionality of the legisla- 
tion to which assent w r as withheld. In some cases there 
has been a species of silent veto, through a neglect of the 
President to return a bill transmitted to him within the last 
ten days of the session, whereby it would fail to become a 
law. It was not contemplated by the Constitution that the 
President should purposely clef eat legislation in that mode ; 
and no doubt it has sometimes occurred through the im- 
possibility of giving careful examination to the provisions 
of bills referred to him, during the last days of the session, 
in the limited time allowed. 

To what extent the veto shall be resorted to must 
always be matter of discretion with the President. The 
writer in the Federalist evidently imagined that its chief 
use would be the protection of the executive department 
against attempted encroachments. He speaks of "the 
propensity of the legislative department to intrude upon 
the rights and to absorb the powers of the other depart- 
ments," " the insufficiency of a mere parchment delinea- 
tion of the boundaries of each," and " the necessity of 
furnishing each with constitutional arms for its own de- 
fence," and says: "From these clear and indubitable 

1 President Cleveland vetoed many bills. "Until the accession of 
President Cleveland in 1885 the total number vetoed was only L32 (in- 
cluding the so-called pocket vetoes) in ninety-six years. Mr. Cleve- 
land vetoed 301." See Bryce, Am. Com., vol. i,p. 59, 3d Am. ed. This 
number, 301, was during Mr. Cleveland's first term, and thev were 
mostly private pension hills. Mr. Bryce says. " The only President 
who acted recklessly was Andrew .Johnson." The tendency seems to 
bo toward a free use of this power. 



180 CONSTITUTIONAL LAW. 

principles results the propriety of a negative, either abso- 
lute or qualified, in the executive upon the acts of the 
legislative branches. Without the one or the other, the 
former would be absolutely unable to defend himself 
against the depredations of the latter. He might grad- 
ually be stripped of his authorities by successive resolu- 
tions, or annihilated by a single vote. And in the one 
mode or the other the legislative and executive powers 
might speedily come to be blended in the same hands. If 
even no propensity had ever discovered itself in the legis- 
lative body to invade the rights of the executive, the rules 
of just reasoning and theoretic propriety would of them- 
selves teach us that the one ought not to be left at the 
mercy of the other, but ought to possess a constitutional 
and effectual power of self-defence." 

It is added, however, that " the power in question has a 
further use. It not only serves as a shield to the execu- 
tive, but it furnishes an additional security against the 
enaction of improper laws. It establishes a salutary 
check upon the legislative body, calculated to guard the 
community against the effects of faction, precipitancy, or 
of any impulse unfriendly to the public good, which may 
happen to influence a majority of that body." x 

Occasions for frequent differences between the legisla- 
ture and the executive, on questions of constitutional right 
or power, seem not to have been anticipated ; but it is in 
these that the use of the veto has been most important. 
JSTo one has ever questioned the right aud duty of the 
President to make use of his negative when it was believed 
the proposed law was subject to objection on constitu- 
tional grounds. It has been claimed, however, that when 
the point of constitutional law which the case presents is 
one which has previously received judicial examination 
and decision, he may not rightfully disregard this decision 
and base his negative on his own opinion opposed to that 
of the judiciary. 

1 No. 73, by Hamilton. And see Madison's Works, iv. 369, letter 
to Edward Coles. 



CHECKS AND BALANCES IN GOVEBNMENT. 181 

That the President has a discretionary power to veto a 
bill, for any reason that appears to him sufficient, is un- 
doubted. The Constitution gives the power, and makes 
no exceptions. That it is proper he should pay great def- 
erence to the judicial authority on such questions as have 
already been authoritatively determined, may also be con- 
ceded. But that he is guilty of any violation of duty, or 
is disrespectful to the judiciary, or disregards any just 
principle of government, when he acts upon his own judg- 
ment of constitutional right, power, or obligation involved 
in any proposed law, is not admitted. When he does not 
approve a bill, he is to withhold his approval ; and when 
he may do so on grounds of mere expediency, it would be 
remarkable if he were not at liberty to do so when his 
objection goes to the very right of the legislature to pass 
the bill at all. 

The act making treasury notes a legal tender was authori- 
tatively passed upon, and finally sustained, by the Federal 
Supreme Court. The decision settled the law as to that 
act, and was binding upon the President as much as upon 
any private citizen. But should any great emergency 
hereafter seem to present to Congress a sufficient reason 
for passing a similar act, what possible reason could exist 
for the President withholding his approval which would be 
more forcible than that in his opinion the Constitution did 
not warrant it? He has deferred to the judgment of the 
court as to what the law was ; must he now defer to it in 
deciding what the law shall be? The court itself, in a 
new case, might overrule its own decision, and it would be 
the plain duty of the court to do so if the justices should 
reach the conclusion that so great an error had boon com- 
mitted as the sanction of a violation of the charter of 
government. But the President overrules no decision in 
such a case : he simply acts upon his own judgment as a 
legislator. And it can never be disrespectful to the judi- 
ciary that, any branch of the legislature differs with it in 
opinion when acting within the sphere of its powers, 



182 CONSTITUTIONAL LAW. 



CHAPTER VIII. 

THE GOVERNMENT OF THE TERRITORIES. 

The Constitution. — By Article IV. of the Constitution 
it is declared that Congress shall have power " to make 
all needful rules and regulations respecting the territory or 
other property belonging to the United States." 1 

The Purposes. — Rules and regulations for the territory 
of the United States may be of two kinds : First, those 
having regard to it as property merely, and intended to 
guard and improve it as such, and perhaps to prepare it 
for sale and sell it ; 2 and, second, those which concern the 
government of the people who may reside within the terri- 
tory before it is formed into States. This provision of the 
Constitution differs from most others contained in that 
instrument in this : that by it the States concede nothing, 
at least so far as the territory outside their own limits is 
concerned, since over this they had no power whatever to 
make rules themselves. Indeed, as to such territory the 
provision would be needless, for the United States as a 
sovereignty would have inherent power to govern at dis- 
cretion such territory as it possessed beyond state limits 
The States could not restrict the right, and no restrictions 
could come from any other authority. 

Control by Congress. — The peculiar wording of the 
provision has led some persons to suppose that it was 
intended Congress should exercise in respect to the ter- 
ritory the rights only of a proprietor of property, and 

i Const., Art. IV. § 3, cl. 2. 

2 United States v. Gratiot. 14. Pet. 526. 



GOVERNMENT OF THE TERRITORIES. 183 

that the people of the Territories were to be left at liberty 
to institute governments for themselves. It is no doubt 
most consistent with the general theory of republican in- 
stitutions that the people everywhere should be allowed 
self-government •, but it has never been deemed a matter 
of right that a local community should be suffered to lay 
the foundation of institutions, and erect a structure of gov- 
ernment thereon, without the guidance and restraint of a 
superior authority. Even in the older States, where society 
is most homogeneous and has fewest of the elements of 
disquiet and disorder, the State reserves to itself the right 
to shape municipal institutions ; and towns and cities are 
only formed under its direction, and according to the rules 
and within the limits the State prescribes. With still less 
reason could the settlers in new territories be suffered to 
exercise sovereign powers. The practice of the govern- 
ment, originating before the adoption of the Constitu- 
tion, has been for Congress to establish governments for 
the Territories ; and whether the jurisdiction over the 
district has been acquired by grant from the States, or 
by treaty with a foreign power, Congress has unquestion- 
ably full power to govern it, and the people, except as 
Congress shall provide therefor, are not of right entitled 
to participate in political authority, until the territoiy 
becomes a State. 1 Meantime the}' are in a condition of 
temporary pupilage and dependence ; and while Congress 
will be expected to recognize the principle of self-gov- 
ernment to such extent as may seem wise, its discretion 
alone can constitute the measure by which the partici- 
pation of the people can be determined. ^If territory is 

1 American Ins. Co. v. Canter, 1 Pet. 511, 542; Territory v. Lee, 
2 Montana, 124 ; Reynolds v. Feople, 1 Colorado, 179; Carpenter v. 
Rogers, 1 Montana, 90; National Rank i\ Yankton, 101 U.S. 129 j 
Mormon Church v. United States, 186 U. S. 1. In this last case, in 
discussing the plenary power of Congress over the Territories, it is 
BUggested that it would doubtless bo impliedly subject to those funda- 
mental limitations in favor of personal rights which are formulated 
in the Constitution and Amendments. See also Am. Tub. Co. A 
Fisher, 1G0 U. S. 404. 



184 CONSTITUTIONAL LAW. 

acquired from a foreign country with a de facto govern- 
ment in full operation, this government will continue with 
the presumed consent of the people, until Congress shall 
provide for them a territorial government. \ ' ' The great 
law of necessity justifies this conclusion. The consent of 
the people is irresistibly inferred from the fact, that no 
civilized community could possibly desire to abrogate an 
existing government, when the alternative presented would 
be to place themselves in a state of anarchy, beyond the 
protection of all laws, and reduce them to the unhappy 
necessity of submitting to the dominion of the strongest." 
The limitation to the power of this de facto government 
is, that it shall " exercise no power inconsistent with the 
provisions of the Constitution of the United States, which 
is the supreme law of the land." 1 f 

Forms of Territorial Governments. — iTwo general 
forms of territorial government have from time to time 
been established by Congress for different Territories. The 
first of these is a government with an executive and judges 
appointed by the President with the advice and consent of 
the Senate, who together constitute the legislature for the 
Territory.' The second is a government in which, while the 
executive and judicial will be of national appointment, 
the legislature is composed of representatives chosen by 
the people of the Territory. J Some of the Territories have 
had both forms, and also between the two a third, which 
was a modification of both. By the Ordinance of 1787, for 
the government of the Northwest Territory, the governor 
and judges, or a majorit} T of them, were empowered to 
adopt for the Territory such laws of the original States, 
criminal and civil, as might be necessaiy and best suited 
to the circumstances of the district, and report them to 
Congress from time to time, which laws were to be in force 
until the organization of the General Assembly therein, 
unless disapproved by Congress ; but afterwards the legis- 

J Cross v. Harrison, 16 How. 104, 184, 



GOVERNMENT OF THE TERRITORIES. 185 

lature was to have authority to alter them as it should 
think fit. And the people were to have the right to elect 
representatives to a General Assembly so soon as there 
should be five thousand free male inhabitants of full age 
in the Territory, f The legislative power of the governor 
and judges, it is seen, was limited to a selection of laws 
from the States ; but when a territorial legislature has 
been provided for, the authority conferred upon it has ex- 
tended to all rightful subjects of legislation, 1 and it might 
therefore grant charters of incorporation, 2 endow institu- 
tions of learning, 3 provide for the exercise of the right of 
eminent domain, 4 allow illegitimate children to inherit, 5 
grant a legislative divorce, 6 and so on. Congress may at 
any time control the legislation of the Territories, or legis- 
late independently for them, 7 but the territorial laws not in 
conflict with the Constitution or any act of Congress would 
stand, unless disapproved. 8 The absence, however, of 
action by Congress is not to be construed as a recognition 
of the power of the territorial legislature to pass acts in 
conflict with the congressional act under which the terri- 
tory was organized. 9 ,■ 

The Public Domain. — Of that portion of the Territo- 

1 Miners' Bank v. Iowa, 12 How. 1 ; Vincennes University v. In- 
diana, 14 How. 268 ; Wisconsin v. Doty, 1 Pinney (Wis.), 396; State 
v. Young, 3 Kans. 445. 

2 Miners' Bank v. Iowa, 12 How. 1. 

3 Vincennes University v. Indiana, 14 How. 268, 273. 

4 Swan v. Williams, 2 Mich. 427 ; Carson River, &c. Co. v. Barrett, 
2 Nev. 249 ; Lewis Co. v. Hayes, 1 Wash. Ter. 128. 

6 Cope v. Cope, 137 U. S. 682. 

6 Maynard v. Hill, 125 U. S. 190. Or empower a probate court to 
grant divorces. Whitmore v. Harden, 3 Utah, 121. 

7 Reynolds v. United States, 98 U. S. 145. As by disfranchising 
polygarnists. Murphy v. Ramsey, 114 U. S. 15. 

8 Clinton v. Englebrecht, 13 Wall. 434. This case reviews and 
explains the territorial legislation. And see Ferris '•. Higley, 20 
Wall. 375; Moore v. Koubly. 1 Idaho, 55; Smith r. Odell, 1 l'inney 
(Wis.), 419 ; Morton t\ Sharkey, MeCahon (Kans.), 113. 

9 Clayton v. Utah, 132 U. S. 632. 



186 CONSTITUTIONAL LAW. 

ries which belongs to the public domain, and of which, 
therefore, the United States has proprietary title, Congress 
provides for the disposition and sale, under such regula- 
tions as are deemed important. In respect to this, the 
government occupies the two positions of proprietor and 
of sovereign of the country, and ma}- deal with it at dis- 
cretion, and pass title to it in any manner it may choose. 
The proviso that " nothing in this Constitution shall be so 
construed as to prejudice any claims of the United States, 
or of an} T particular State," had in view claims, some of 
which were recognized and some disputed, but all of which 
were subsequently adjusted amicably. 

The "other property belonging to the United States" 
of which Congress is empowered to dispose, might be any 
which was then, or in the course of time might become, 
their property, whether acquired as a government, or as 
an individual or corporation might acquire it. 
j Judiciary of the Territories. — While the territorial 
condition remains, the courts of the Territory exercise the 
customary jurisdiction of both state and federal courts 
.under congressional and territorial legislation. 1 Their 
powers cease as soon as the Territory is admitted to the 
Union, and judicial acts afterwards performed are void for 
want of jurisdiction. 2 Congress will provide, by appropri- 
ate legislation, for the transfer of cases begun in the terri- 
torial courts to the proper courts for further proceedings. 3 

1 American Ins. Co. v. Canter, 1 Pet. 511. 

2 Benner v. Porter, 9 How. 235 ; Forsyth v. United States, 9 How. 
571 ; United States v. Simpson, 9 How. 578. 

3 Express Co. v. Kountze, 8 Wall. 342. The judges of territorial 
courts are not judges of "courts of the United States." The whole 
matter of the formation of those courts and the tenure of the judges 
thereof is left with Congress. It may, therefore, empower the Presi- 
dent at his discretion to suspend territorial judges before the end of 
their terms of office. McAllister v. United States, 141 U. S. 174. 



ADMISSION OF NEW STATES. 18! 



CHAPTER IX. 

THE ADMISSION OF NEW STATES. 

Original States. — The Constitution provided that the 
ratification by the conventions of nine States should be 
sufficient for the establishment of the Constitution between 
the States so ratifying the same ; * but it contemplated the 
accession of all the thirteen States, if all should ratify, 
even though some might delay until after the government 
should have been put into operation. 

New States. — The Constitution also provided that new 
States may be admitted by Congress into the Union ; 2 but 
whether the}' should be formed of territory at that time 
belonging to the States, or from territory that might there- 
after be acquired, or taken in as existing States previously 
independent, was not expressly determined by that in- 
strument. By the Ordinance of 1787, however, which the 
Constitution left in force, 8 it had been agreed that States 
not exceeding five might be formed from the Northwest 
Territory, and received into the Union ; and it may be 
assumed as unquestionable that the constitutional pro- 
vision contemplated that the territory then under the 
dominion of the United States, but not within the limits 
of any one of them, was in due time to be formed and 
organized into States and admitted into the Union, as has 
since in many cases been done. Indeed, it could never 
have been understood that any territory which by pur- 
chase, cession, or conquest should at any time come under 

1 Const, Art. VII. » Const., Art. IV. § 3. 

8 Spooner v. McConnell, 1 McLean, 337. 



188 CONSTITUTIONAL LAW. 

the control of the United States, should permanently be 
held in a territorial condition, and the new States, which 
have been formed of territory acquired by treaty, must 
be supposed to have been received into the Union in 
strict compliance with the Constitution. 1 So must Texas, 
which as an independent State was annexed to the Union. 
It is true that nothing in the express terms of the Con- 
stitution indicates that it was contemplated, by those who 
framed and adopted it, that the bounds of the Union 
should be extended by the acquisition of territory, either 
by purchase or annexation. Nevertheless, the power in 
any sovereignty to acquire territory is indisputable, and 
of right pertains to the power to declare war and form 
treaties. It therefore belongs to the United States, and 
is denied to the States, which are forbidden to enter into 
treaties. 2 And when territory is acquired, the right to 
suffer States to be formed therefrom, and to receive them 
into the Union, must follow of course, not only because 
the Constitution confers the power to admit new States 
without restriction, but also because it would be incon- 
sistent with institutions founded on the fundamental idea 
of self-government that the federal government should 
retain territory under its own imperial rule, and deny the 
people the customan T local institutions. The power to 
admit to the Union existing States, as in the case of 
Texas, may be questioned with more reason ; 3 but the 
dealings of one sovereignty with another must always be 
under subjection to the great law of necessit}', and what 
the requirements of that law may be in any particular 
case only the sovereignty itself can judge when the emer- 



1 Compare Scott v. Sandford, 19 How. 393, 447, 

2 Const., Art. I. § 10. 

3 The debates which took place in Congress while the subject of 
the annexation of Texas was under discussion, and the contempora- 
neous political discussions elsewhere, give the opposing views on this 
subject. Most of the discussions, however, involved policy rather 
than constitutional power. See ante, p. 117. 



ADMISSION OF NEW STATES. 189 

gency is upon it. If, therefore, an independent State is 
received into the Union, it must be supposed to have been 
accepted on sufficient and conclusive reasons. 

Preliminary Steps. — The Constitution does not point 
out what steps shall be taken for the admission of a State 
to the Union, but, the power having been conferred upon 
Congress without limitation, it is left to the discretion of 
that body to determine the circumstances under which the 
admission shall be allowed, and the steps that shall be 
taken to obtain it. Nevertheless, certain requisities are 
necessarily implied. [ There must be a State to admit ; 
and a State must have a government and laws ; and the 
government must be republican in form because States 
with such a government can alone be members of the 
Union. / But how the State shall come into existence ; who 
shall be its electors and form its government and establish 
its laws ; how many of the electors there shall be ; what 
shall be the extent of territorj 7 incorporated within the 
limits of their State ; and whether any constitution the 
people may have formed shall be received as satisfactory 
or shall be required to be amended, — these and many 
other questions must be determined under the discretion- 
ary power conferred upon Congress. 

States have been admitted, — (1) where the people 
of a Territory of suitable size have, either by spontaneous 
action or in accordance with some territorial statute or 
executive proclamation, formed a constitution and elected 
officers to administer it, and presented, the constitution to 
Congress and applied for admission under it; (2) where 
Congress has first passed an enabling act, authorizing the 
people to form a constitution, prescribing rules of suffrage 
and other conditions, and providing for the admission 
of the State when the constitution shall be adopted and 
the conditions complied with ; (3) when a constitution, 
formed with or without previous congressional authority, 
has been presented to Congress, and that body has ac- 
cepted it conditionally, requiring the consent of the people, 



190 CONSTITUTIONAL LAW. 

evidenced in some form indicated, to some condition 
precedent to the admission, such as the consent to 3'ield 
some portion of the territory claimed, or some rule of 
suffrage established by the state constitution, &c. Besides 
these there have been other peculiarities of admission, 
but this statement is sufficient to show that the control of 
Congress is exercised according to the circumstances. In 
one instance, admission was refused, though the popu- 
lation was ample, because of objection to local laws and 
usages. 1 

With full discretionary power over the admission of 
States, it must be expected that the action of Congress 
will not always be governed by uniform sentiments and 
uniform rules, and it has at times confessedly been con- 
trolled by party or sectional considerations. The Consti- 
tution neither does nor can establish effectual safeguards 
against the control of such influences. 

Seceded States. — Those States whose people undertook 
to sever them from the Union, under claim of a right to 
secede, were nevertheless not released from their constitu- 
tional relations. 2 Until the rebellion was overthrown their 
position was peculiar : the}* had dislo}'al governments 
exercising all the ordinary powers of sovereigmVy, with 
courts administering justice between man and man, and 
legislatures passing laws of general, but also of purely 
local concern. When resistance to the federal government 
ceased, regard to the best interests of all concerned re- 
quired that such governmental acts as had no connection 
with the disloyal resistance to government, and upon the 
basis of which the people had acted and had acquired 
rights, should be suffered to remain undisturbed. 8 But all 

1 The case of Utah. The facts concerning the admission of States 
to the Union are all collected, and the principles discussed, in Jame- 
son on Constitutional Conventions. 

2 White v. Cannon, 6 Wall. 443; Texas v. White, 7 Wall. 700; 
Shortridge v. Macon, Chase's Dec. 136 ; Keith v. Clark, 97 U. S. 454. 

3 Keppel v. Railroad Co., Chase's Dec. 167, Cook v. Oliver, 1 



ADMISSION OF NEW STATES. 191 

acts done in furtherance of the rebellion were absolutely 
void, and private rights could not be built up under, or 
in reliance upon them. 1 To restore the States to their 
former place in the Union, no new admission was required, 
but they were restored to their full constitutional powers 
as rightful members of the Union, when the fact was rec- 
ognized by the political departments of the government, 
and their senators and representatives were admitted to 
seats in Congress. 2 

States from other States. — \ The Constitution further 
provides that "no new State shall be formed or erected 
within the jurisdiction of any other State, nor any State 
be formed by the junction of two or more States, or parts 
of States, without the consent of the legislatures of the 
States concerned, as well as of the Congress."/ The 
political departments of the government practically decided 
in the case of Virginia that, when a State goes into rebel- 
lion, any part of it, however small, which remains loyal, 
ma} 7 with the consent of Congress maintain a loj'al state 
government for the whole State, and that this government 
may give consent to the erection of a new State within the 
limits of the old, and the legislatures of the old and new 
States may agree upon conditions. It is competent in 
such a case to make the annexing of a certain part of the 
old State to the new depend upon a favorable vote of the 
electors within such territory ; and when that is done, and 
the governor is given power to certify the result, his cer- 
tificate that the vote was favorable, especially if accepted 
and acted upon by the new State by the extension of 

Woods, 437 ; Hatch v. Burroughs, 1 Woods, 430 ; Thorington v. 
Smith, 8 Wall. 1 ; Horn y. Lockhart, 17 Wall. 570 ; Sprott v. United 
States, 20 Wall. 450; Ford v. Surget, 07 U. S. 504 

1 Ilanauer v. Doane, 12 Wall. 342; Hanauer v. Woodrnff, 15 Wall 
430 ; Sprott v. United States, k J0 Wall 450, Ford r. Surget, 07 U. S 
604. 

2 Texas v. White, 7 Wall. 700 ; Keith r. Clark, 07 U. S. 454. 
* Const., Art. IV. § 3, el. 1. 



192 CONSTITUTIONAL LAW. 

jurisdiction over the territor} T , is conclusive. 1 It is not 
necessary that the consent of Congress to the formation 
of the new State should be given in express terms, but 
it may be implied from its legislation recognizing such 
State. 2 

Territorial Laws. — A State coming into the Union 
brings with it the pre-existing law, except so far as ex- 
pressly or by necessary implication it is changed by the 
Constitution, or b}^ the passage from a territorial to a state 
condition. All those laws which relate to the territorial 
condition and circumstances exclusively become of neces- 
sity inoperative. 

Conditions to Admission. — In several instances Con- 
gress has prescribed conditions to the admission of States 
to the Union. When Missouri applied for admission, the 
constitution which was presented contained a clause re- 
quiring the legislature to pass such laws as might be found 
necessary " to prevent free negroes and mulattoes from 
coming to and settling in this State, under any pretext 
whatsoever." The State was received into the Union on 
condition that a solemn pledge should be given by its legis- 
lature that the constitution should never be construed to 
authorize the passage of any act, and that no act should 
be passed, by which any of the citizens of other States 
should be excluded from the enjoyment of any of the privi- 
leges and immunities to which they are entitled under the 
Constitution of the United States. Presumably this would 
cover the privilege of colored citizens of other States to 
emigrate into Missouri, if they should see fit. 3 

The State of Michigan was admitted to the Union upon 
the express condition that she should surrender to the State 

1 Virginia v. West Virginia, 11 Wall. 39; Kanawha Coal Co. v. 
Kanawha, &c. Coal Co., 7 Blatch, 391. 

•2 Virginia v. West Virginia, 11 Wall. 39. There is a provision in 
the joint resolution for the annexation of Texas for the formation of 
four other States from its territory, with the consent of the State ; 
but no action to that end was ever taken. 

a Benton's Thirty Years' View, ch. 2. 



ADMISSION OF NEW STATES. 193 

of Ohio certain territoiy which had been the subject of dis- 
pute between them, and her assent thereto was required to 
be given b}" a convention of delegates chosen by the people 
for the sole purpose of giving such assent. 1 

The State of Arkansas was admitted to representation 
in Congress, June 22, 1868, on the fundamental condi- 
tion " that the constitution of Arkansas shall never be so 
amended or changed as to deprive any citizen or class 
of citizens of the United States of the right to vote, 
who are entitled to vote by the constitution [then pre- 
sented by the State], except as a punishment for such 
crimes as are now felonies at common law, whereof they 
shall have been d.uly convicted, under laws equally appli- 
cable to all the inhabitants of said State." The purpose 
was to protect colored citizens in the enjoyment of the 
elective franchise. The States of North Carolina, South 
Carolina, Louisiana, Alabama, and Florida were admitted 
to representation, the same month, on a similar condition. 
On the State of Georgia the same condition was imposed ; 
also the further conditions, that the fourteenth amendment 
to the federal Constitution should be ratified, that certain 
provisions in her own constitution, not important to be 
here repeated, should be "null and void," and that the 
General Assembly of the State should by solemn public 
act declare the assent of the State to the condition. The 
State of Virginia was admitted to representation in Con- 
gress, January 28, 1870, on the same condition with the 
others mentioned, in respect to suffrage, and on the fur- 
ther conditions, " that it shall never be lawful for the 
said State to deprive any citizen of the United States, on 
account of his race, color, or previous condition of servi- 
tude, of the right to hold office under the constitution and 
laws of said State, or upon any such ground to require o{ 
him any other qualification for office than such as arc re- 
quired of all other citizens;" and " that the constitution 

1 Campbell's Hist, of Mich., eh. 14. 
M3 



194 CONSTITUTIONAL LAW. 

of Virginia shall never be so amended or changed as toj^ 
deprive any citizen or class of citizens of the UnitedT 
States of the school rights and privileges secured by the 
constitution of said State." The States of Mississippi 1 .^ 
and Texas were admitted to representation in the follo^ ■ 
ing month, on the like conditions to those imposed orrT 
Virginia. g> 

The State of Nebraska was admitted to the Union f Jn 
1867, with a proviso in the act of admission that it should^ 
not take effect " except. upon the fundamental condition^ 
that within the State of Nebraska there shall be no denftt, 
of the elective franchise, or of any other right, to an^ 
person by reason of race or color, except Indians ijpt? 
taxed, and upon the further fundamental condition t]gjil£ 
the legislature of said State, by a solemn public act, s^a]i 
declare the assent of said State to the said fundamental 
condition, aud shall transmit to the President of Ch$ 
United States an authentic copy of said act. Upon re- 
ceipt whereof the President -by proclamation shall forth- 
with announce the fact; whereupon said fundamental* 
condition shall be held as a part of the organic law of 
the State ; and thereupon, and without any further pro- 
ceeding on the part of Congress, the admission of said 
State into the Union shall be considered as complete." 
The proclamation of the President announcing the pas- 
sage of such an act, and the receipt of an authentic copy 
thereof, was issued on March 1, 1867. 2 

1 It is worthy of note that the act admitting Mississippi to repre- 
sentation (1870) established as a "fundamental condition" that her 
constitution should never he so amended as to deprive any citizen of 
the right to vote who had such right under the constitution then rec- 
ognized by Congress, unless such deprivation be because of crime. 
Yet in 1890 a new constitution was adopted establishiug a slight edu- 
cational qualification, the practical result of which has been to exclude 
a very large proportion of the citizens from the suffrage. See also the 
constitution of South Carolina (1895), and the case of Williams v. 
Mississippi, 170 U. S. 213. 

2 See Butler v. People, 2 Nebraska, 198. 



ADMISSION OF NEW STATES. 195 

Other conditions have been imposed ; and a common 
requirement on the admission of a State is, that it shall 
waive all right to impose taxes on the lands of the United 
States. Some of these conditions are beyond question 
irrevocable by the States. Such, for example, are those 
last mentioned, which are irrevocable because they con- 
stitute articles of compact between the State and the 
nation, which would render the taxation void. Such also 
would be a condition respecting boundary, as in the case 
of Michigan. The condition in the case of Missouri 
merely required the State to observe one of the stipula- 
tions in the Federal Constitution, which was as much 
obligatory upon the State without the condition as with it. 
Whether the legislature can give binding effect to a con- 
dition which changes the constitution established by the 
people is at least doubtful. But when a State comes into 
the Union, it is received on an equal footing with the 
original States, and with all their rights and privileges. 1 
It must therefore have the same power to amend its con- 
stitution which is possessed by the other States, and a 
condition which should undertake to limit its power in 
this regard must, in a legal sense, be wholly inoperative. 
It is to be observed of those which have been imposed, 
and which would limit the power of amendment, that they 
have since been rendered unimportant by amendments to 
the Federal Constitution. 

1 Pollard's Lessee v. Hagan, 3 How. 212; Strader v. Graham, 10 
How. 82; Weber v. Harbor Commissioners, 18 Wall. 57; Willamette 
Bridge Co. v. Hatch, 125 U. S. 1. 



CONSTITUTIONAL LAW. 



CHAPTER X. 

CONSTITUTIONAL RULES OF STATE COMITY. 

Conflict of Laics. — It often happens that a right as- 
serted or privilege claimed in one State will depend for its 
validity upon something done by the parties concerned, or 
by one of them, in some other State, whereb}* the right or 
privilege became initiate, or perhaps perfected. In such 
case the laws of both States are to be considered in order 
to determine how the3 T respectively affect the claims made. 
In these cases the questions which arise are questions of 
interstate comity, and, except as the provisions of the 
federal constitution affect and modify them, they are to be 
governed by the rules of private international law, as they 
would be if the two States had been to each other foreign 
nations. 

The rules of private international law are taken notice 
of and enforced by the courts just as are the general prin- 
ciples of the common law ; and the federal courts, like those 
of the States, when administering justice within a State 
between suitors entitled to bring suits therein, will recog- 
nize and be governed by them. But, like other rules of 
law, they are subject to be varied and controlled by state 
legislation, and there may be and often is a general state 
policy upon some particular subject before which the rules 
of private international law which are opposed to it must 
give wa}\ 

A familiar instance of these rules is that which concerns 
the title and transmission of personal propert}\ The doc- 
trine universally accepted is that chattels have no situs, 



CONSTITUTIONAL RULES OF STATE COMITY. 197 

but in contemplation of law adhere to the person of the 
owner, wherever he may be. 1 If actually in one State 
while the owner has his domicile in another, the latter 
may dispose of them according to the law of the domicile, 
and his contracts or conveyances, which are sufficient un- 
der the law there, will be held sufficient everywhere. 2 So 
his will, valid according to the laws of his domicile, will 
be sufficient to dispose of them, and, if he dies intestate, 
they will be distributed as they would be if actually with 
him in fact, as they were in contemplation of law. 3 But 
while this case illustrates the general law, it also enables 
us to appreciate and understand some important excep- 
tions. One of these is that no sovereignty is bound to 
recognize and give effect to a transfer of property which 
at the time is within its jurisdiction, unless all just claims 
which it may have, or which any of its citizens may have, 
in respect to such property, are first satisfied. Therefore, 
in a case of intestacy, if the State where the property is 
has unsatisfied claims upon it for taxes, or if any of its 
citizens have demands against the estate, it may justly 
provide that all such claims and demands shall be satis- 
fied before the property will be handed over to an admin- 
istrator for distribution at the forum of the domicile. 4 
Another is that a transfer actually made abroad, in which 
both parties contemplate some use of the property in con- 
travention of the laws of the State where it has its situs, 

1 Harvey v. Richards, 1 Mason, 381; Oakey v. Bennett, 11 How. 
33 ; Story, Conn*. L., §§ 376-382. 

2 The State where the chattels are may, however, exercise such 
control over them as to invalidate transfers of them made without 
conformity to its laws; for example, its laws as to liens or the record- 
ing of chattel mortgages. Green v. Van Buskirk, 7 Wall. 139; Wal- 
worth v. Harris, 129 U. S. 355; Ames Iron Works r. Warren, 76 hid. 
512. 

3 Sill y. Worswiek, 1 H. Black. 06.-); Bank of Augusta r. Karle. 
18 Pet. 519; Ennis v. Smith, 14 How. 400; Fuller v. Steiglitz, 27 Ohid 
St. 355 ; Cade y. Davis, 96 N. C. 139 ; Estate of Apple, 66 Cal. 482. 

4 Swearingen v. Morris, 14 Ohio St. 424 j Grattan v. Appletou, 
3 Story, 755; Hill v. Townsond, 24 Tex. 575, 



198 CONSTITUTIONAL LAW. 

and participate in a purpose to violate those laws, will 
not be recognized and supported in the last mentioned 
State. 1 In neither of these cases can there be any ground 
of interstate comity that could require the one sovereignty 
to surrender its own claims or those of its citizens, in 
favor of claims abroad which could be no more substan- 
tial or equitable, or that could call upon it to waive its 
local laws in favor of those who might choose a foreign 
territory as the theatre of their operations, for the express 
purpose of evading and defeating them. Nor is a State 
bound to enforce a wager contract made in another State 
and valid there, if regarded as void under its own view of 
public policy. 2 But the general rule is, that, when made 
in good faith, the validity and interpretation of contracts 
are to be governed by the law of the State where they are 
made, unless they are to be performed in another State, 
and the parties clearly intended them to be governed by 
the law of that State, in which case they will be governed 
by the law of the State of performance. 3 And under 
these rules all States will furnish suitable remedies for the 
enforcement of contracts within their own limits, as it 
may become necessary. The remedies in any case, how- 
ever, will be such only as are provided by its own laws. 4 

1 Waymell v. Reed, 5 T. K. 599; Armstrong v. Toler, 11 Wheat. 
258; Webster v. Hunger, 8 Gray (Mass.), 584; Smith v. Godfrey, 28 
N. H. 379 ; Wilson v. Stratton, 47 Me. 120; Jones v. Surprise, 64 N. H. 
243 ; Rorer, Inter-State Law, 2d ed., 82, 83, 273 ; Story, Conn. L., § 246 
et seq. As to what action is not within this rule, see Feineman v. 
Sachs, 33 Kans. 621. In Chambers v. Church, 14 R. I. 398, the court 
refused to enforce a contract to be executed in another State which 
violated the laws of that State. 

2 Flagg v. Baldwin, 38 N. J. Eq. 219. 

3 Bank of United States v. Donnally, 8 Pet. 361 ; Andrews v. Pond, 
13 Pet. 65; De Wolf v. Johnson, 10 Wheat. 367; Liverpool Nav. Co. 
v. Phenix Ins. Co., 129 U. S. 397 ; Wooley v. Lyon, 117 111. 244; Shoe 
& L. Bank v. Wood, 142 Mass. 563 ; Story, Confl. L., § 242. 

4 Bank of United States v. Donnally, 8 Pet. 361 ; Wilcox v. Hunt, 
13 Pet. 378 ; Scudder v. National Bank, 91 U. S. 406, 413 ; Story, 
Confl. L., § 556. 



CONSTITUTIONAL EULES OF STATE COMITY. 199 

The cases of marriage and divorce raise frequent ques- 
tions growing out of differences in the law where a mar- 
riage or a divorce may take place, and the law where the 
parties may afterwards be found domiciled. \The rule of 
law with respect to marriages is, that, if they are valid 
where entered into, they are valid everywhere ; x but this is 
subject to exceptions in the case of polygamous marriages, 
and marriages which would be incestuous according to the 
laws of nature as commonly understood, by which we must 
perhaps understand only marriages between brothers and 
sisters, and marriages in the direct lineal line of consan- 
guinity. 2 The importance of this relation is so great, and 
the mischiefs that would flow from its being held invalid 
where the parties have intended that it should exist, are 
so serious, that marriages are sustained even where par- 
ties, who are not allowed to marry by the laws of the 
State of their domicile, have gone abroad and been mar- 
ried, subsequently returning to reside. 3 \ In respect to 
divorce a like rule prevails, that a divorce valid where 
granted is valid everywhere ; but every State will pro- 
tect any of its own citizens against being defrauded by 
a divorce obtained abroad by fraud, or granted without 
jurisdiction. 4 ) 

Local and Transitory Actions. — There are some actions 
in which the remedy was always held to be local, and 
which consequently must be brought within the jurisdic- 
tion where the injury complained of was committed. 
From the necessity of the case, actions for the recovery 
!)f lands must belong to this class, since process to enforce 

1 Medway v. Ncedham, 16 Mass. 157; Ponsford v. Johnson, 2 
Blateh. 51 ; Wliart. Confl, L., § 127. 

2 Sutton v. Warren, 10 Met. (Mass.) 451 ; Wightniaiw. Wight man, 
1 Johns. Oh. (X. Y.) .'543. 

3 Sutton v. Warren, 10 Met. (Mass.) 4al ; State r. Ross, 76 X. 0. 
242; Commonwealth v. Lane, LIS Mass. 458 J Van Voorhis v. Brint- 
nall, 86 X. Y. 18; Bishop, Mar. and Div., ch. 21. 

4 Rorer, Inter-State Law, 2d ed., 248-252. See Cooler, Const. Lim., 
•th ed.. 494. and cases. 



200 CONSTITUTIONAL LAW. 

the right when it should be established could be served 
only where the land was situated. But all actions fot 
injuries to real estate are in the same category, and, even 
when they may be instituted in the Federal courts, they 
must be brought in the district within which the land lies. 1 
On the other hand, all actions for merely personal injuries 
or for injuries to personal estate, and all actions upon 
contract, may be brought wherever personal service may 
be obtained, 2 and it is immaterial to the remedy in what 
jurisdiction the cause of action arose, though the local law 
must be looked to in order to determine the validity and 
construction of the contract, and the liability of the party 
sued in respect to that which is complained of. In cases 
of contract it is not always necessary that personal ser- 
vice should be obtained, in order that a remedy may be 
had in a foreign state ; attachment and garnishment 
process are allowed to reach property and debts even 
when personal service can not be obtained. But in cases 
of tort personal service is necessary, and process for 
attaching property and demands will not commonly be 
allowed. 

Crimes and offences against the laws of a State can be 
defined, prosecuted, and pardoned only by the sovereign 
authority of that State. 3 " The courts of no country," 
said Chief Justice Marshall, " execute the penal laws of 
another." 4 Penal laws are those imposing punishment for 
an offence committed against the State. 5 In the earlier 

1 Livingston v. Jefferson, 1 Brock. 203 ; McKenna v. Fiske, 1 How. 
241 ; Rundle v. Del. & Rar. Canal, 1 Wall. C. C. 275 ; Worster v. Lake 
Co., 25 N. H. 525. If brought elsewhere, the court entertains them 
by comity only. Morris v. Miss. Pac. Ry. Co., 78 Tex. 17. 

2 A court of general jurisdiction has jurisdiction of an action 
brought between non-residents by consent, if the subject-matter, for 
example, a contract, is within its cognizance. Cofrode v. Circuit 
Judge, 79 Mich. 332. 

3 Huntington v. Attril, 146 U. S. 657, 669, and cases cited; Wis- 
consin v. Pelican Ins. Co., 127 U. S. 265. 

* The Antelope, 10 Wheat. 66, 123. 

6 Huntington v. Attril, 146 U. S. 657, 667. 



CONSTITUTIONAL KtJLES OF STATE COMITY. 201 

cases decided by the State courts, statutory actions for 
wrongs, and especially actions given by statutes against 
one who by wrongful act, neglect, or default caused the 
death of another, were looked upon as penal. But that 
position is now generally abandoned, and the courts of one 
State, or the Federal court sitting in that State, will recog- 
nize and enforce such statutory rights created by the law 
of another. " Wherever by either the common law or the 
statute law of a State, a right of action has become fixed 
and a legal liability incurred, that liability may be enforced 
and the right of action pursued in any court which has 
jurisdiction of such matters, and can obtain jurisdiction 
of the parties.*" 1 

Corporations. — In strict law the corporations chartered 
by one sovereignty have no authority to exercise their 
franchises in another,- except as the latter shall permit ; 2 
but by comity they are suffered to do so, where it would 
not contravene any principle of local policy, or any gen- 
eral statute, but subject to such restrictions as the State 
may see fit to impose. 3 The power to impose restrictions, 
however, must be subordinate to the Constitution and laws 

1 Miller, J., in Dennick v. R. R. Co., 103 U. S. 11, 18. See also 
Huntington v. Attril, 146 U. S. 657; Northern Pacific R, R. Co. v. 
Babcock, 154 U. S. 190 ; Texas & Pacific Ry. Co. v. Cox, 145 U. S. 593 ; 
Ilerrick v. Minneapolis, &c. Ry., 31 Minn. 11 ; Dicey on Coiifl. of Laws, 
668. The tendency now is to hold that there need be no similar 
law in the State of the forum, if the law of the foreign state is not 
immoral or contrary to the public policy of the State of the forum. 
Huntington v. Attril, 146 U. S. 657 ; Herrick v. Minneapolis, &c. Ry., 
31 Minn. 11 ; lliggins v. Central New Eng., &tf R. R., 155 Mass. 176. 

2 Lafayette Ins. Co. v. French, 18 How. 404; Bank of Augusta r. 
Parle, 13 Pet. 519; Paul r. Virginia, 8 Wall. 168; Ducat r. Chicago, 
10 Wall. 410; Whart. Confl. L., § 48; Horn Silver Mining Co. v. New 
York, 143 U. S 305. 

15 Paul v. Virginia, 8 Wall. 168; Ducat v. Chicago, 10 Wall. 410; 
Re Comstock, 3 Sawyer, 218; Moses r. State, 65 Miss. 56; 2 Kent, 
284, 285. Put a court will not, in general, take jurisdiction of the 
purely internal affairs of a foreign corporation doing business within 
the State, even at the suit of a resilient stockholder. North Sfcate M 
Co. v. Field, 64 Md. 151. 



202 CONSTITUTIONAL LAW. 

of the United States. A State could not, for example, 
interpose a restriction that would in effect constitute a 
regulation of interstate commerce, 1 or that would restrain 
the corporation from resorting to the Federal jurisdiction 
in cases within the laws of Congress. 2 But no corpora- 
tion can of right hold real property in a State except by 
permission of the State ; and though the permission will 
be implied wherever there appears no State statute or 
policy to the contrary, 3 yet, as against an express inhibi- 
tion to give lands by will to any but natural persons, not 
even the United States can receive a valid devise. 4 

The Constitution. — There are some cases which it was 
deemed wise, in framing the Constitution, not to leave to 
comity merely, because they concerned so intimately the 
relations of the people of the several States to each other 
that any differences in legislation in respect to them, or 
any divergency in judicial decision, might lead to infinite 
contentions and mischiefs. One of these concerned the 
use in the States respectively of the statutes, records, and 
judicial proceedings of other States, whether as matters of 
evidence or as muniments of title. The common law had 
rules under which these might be proved, but these rules 
were subject to legislative modification at discretion, and 
it was not improbable that, if the States were left to them- 
selves to establish independent regulations, those made by 
them would not only be wanting in uniformity, but they 
would tend to breed discord, instead of preserving frater- 
nal feeling, among the States. It is easy to understand 
how a State, from temporary prejudices or adverse inter- 

1 Pensacola Tel. Co. v. West Un. Tel. Co., 96 U. S. 1. 

2 Insurance Co. v. Morse, 20 Wall. 445; Barron v. Burnside, 121 
U. S. 186; Southern Pacific Co. v. Denton, 146 U. S. 202. 

3 Runyan v. Coster, 14 Pet. 122; Thompson v. Waters, 25 Mich. 
214. If such corporation is forbidden to hold land, only the State 
can raise the question of the validity of title acquired in contravention 
of its law. Barnes v. Suddard, 117 111. 237; Carlow v. Aultman, 29 
Neb. 672. 

4 United States v. Fox, 94 U. S. 315. 



CONSTITUTIONAL KULES OF STATE COMITY. 203 

ests, or even from more reprehensible reasons, might legis- 
late to prevent the reception in evidence of the records, 
and especially the judicial proceedings, of other States. 
It is conceivable, for example, that, in a time of great 
financial distress in a new State, legislation might be 
obtained to protect people emigrating to and settling 
within the State even as against the just judgments ren- 
dered against them in the States from which they came, 
and still remaining unsatisfied. This would not only be 
unjust in itself and disgraceful to the State, but it would 
almost certainly lead to retaliatory legislation. 

State Acts, Records, etc. — i Among the preventive meas- 
ures of the Constitution is the provision that " Full faith 
and credit shall be given in each State to the public acts, 
records, and judicial proceedings of every other State. 
And the Congress may by general laws prescribe the man- 
ner in which such acts, records, and proceedings shall be 
proved, and the effect thereof." 1 ) 

By this provision a rule of comity becomes a rule of 
constitutional obligation. It also becomes a uniform rule, 
and the common authority is empowered to pass laws 
whereby the courts may govern their action in receiving 
or rejecting the evidences presented to them of the public 
acts, records, and judicial proceedings of other States. 
Nor is this of more importance to the States as such than 
to those whose individual interests may be involved or 
affected; and indeed the interests involved are usually 
private and individual, rather than public. 

The full faith and credit to which the public acts, 
records, and proceedings are entitled in other States is 
the same faith and credit to which they are entitled in the 
State whose acts, records, and judicial proceedings they 
are. 2 When, therefore, suit is brought in one State upon 

1 Const., Art. IV. § 1. 

2 Armstrong v. Carson, 2 Pall. 302; Mills v. Duryea, 7 Crunch, 
481 ; Hampton y.McConnell, 3 Wheat. 234 : Field v. Gibbs, Pet. C. C. 
155; Bryant v. Hunters, 3 Wash. C. C. 4S ; Nations v. Johnson, 24 
How. 195, 203. 



204 CONSTITUTIONAL LAW. 

a judgment rendered by a court of another State, and 
it appears that by the law of the last mentioned State 
it is conclusive upon the defendant, it must be held 
equally conclusive in the court in which suit upon it is 
brought. 1 Whatever pleas would be good to it in the 
State where it was pronounced, and none others, might be 
pleaded to it in any other court within the United States. 2 
But the judgment can have no greater or other force 
abroad than at home, and therefore it is always compe- 
tent to show that it is invalid for want of jurisdiction in 
the court rendering it. 3 To preclude inquiry into it in 
another State, the judgment must not only be rendered by 
a court having jurisdiction of the subject-matter and the 
parties, but, if the defendant does not appear at the trial, 
it must be responsive to the pleadings. 4 ( So anything that 
goes in release or discharge of the judgment may be 
shown ; 5 and the statute of limitations of the State where 
suit is brought will be available, if the case comes within 
it. 6 But it is not competent for any State to pass an act 
of limitations which would in effect nullify judgments ren- 
dered in other States, and allow no remedy upon them 
whatever. Reasonable opportunity to enforce a demand 
must always be afforded. 7 | 

Constructive service of process by publication or attach- 

1 Mills v. Duryea, 7 Cranch, 481. 

2 Hampton v. McConnell, 3 Wheat. 234; Green v. Van Buskirk, 7 
Wall. 139. Judgments in one State when proved in another differ 
from judgments of another country in this alone, that they are not 
impeachable for fraud nor open to question upon the merits. Hanley 
w.Donoghue, 116 U. S. 1. 

3 Harris v. Hardeman, 14 How. 334 ; Cheever v. Wilson, 9 Wall. 
108 ; Galpin v. Page, 18 Wall. 350; Thompson v. Whitman, 18 Wall. 
457 ; Grover & B. M. Co. v.Radcliffe, 137 U. S. 287 ; Arnott v. Webb, 
1 Dillon, 362; Whart., Conn. L., §§ 811, 819. 

4 Reynolds v. Stockton, 140 TJ. S. 254. 

5 McElmoyle v. Peters, 13 Pet. 312 ; DArcy v. Ketchum, 11 How. 
165. 

6 Jacquette v. Hugunon, 2 McLean, 129. 

7 Christmas v. Russell, 5 Wall. 290. 



CONSTITUTIONAL RULES OF STATE COMITY. 205 

inent of property is sufficient to enable the courts of a 
State to subject property within it to their jurisdiction, in 
such cases as the statutes of the State may provide there- 
for ; but such a service cannot be the foundation of a per- 
sonal judgment. 1 Process from the tribunals of one State 
cannot run into another State and summon parties there 
domiciled to leave its territory and respond to proceedings 
against them. Publication of process or notice within the 
State where the tribunal sits cannot create any greater 
obligation upon the non-resident to appear. Process sent 
to him out of the State, and process published within it, 
are equally unavailable in proceedings to establish his per- 
sonal liability. 2 But in respect to the res, a judgment in 
rem, rendered with competent jurisdiction, is conclusive 
everywhere. 3 

Legislation. — Congress has legislated upon this subject 
by providing that "The acts of the legislature of any 
State or Territory, or of any country subject to the juris- 
diction of the United States, shall be authenticated by 
having the seal of such Territory, State, or country affixed 
thereto. The records and judicial proceedings of the 
courts of any State or Territory, or of any such country, 
shall be proved or admitted in any other court within the 
United States, by the attestation of the clerk and the seal 
of the court annexed, if there be a seal, together with the 
certificate of the judge, chief justice, or presiding magis- 
trate, that the said attestation is in due form. And the 
said records and judicial proceedings, so authenticated, 
shall have such faith and credit given to them in every 
court within the United States as they \ive by law or usage 
in the courts of the State from win 4 they are taken.'' 4 

1 Roswell's Lessee v. Otis, 9 How. 336: Cooper v. Reynolds. 10 
Wall. 308. 

2 Pennoyer v. Neff, 95 U. S. 714, 727. 

3 D'Arcy v. Ketclmm, 11 How. 165; Williams v. Armroyd, 7 
Cranch, 423. 

4 Rev. Stat. U. S., § 905. 



206 CONSTITtTTIOXAL LAW. 

This law provides what shall be sufficient in all cases, 
but it does not preclude the States making other regu- 
lations, not in conflict with these, for themselves, nor 
does it prevent making proof of records in common 
law modes. 1 These provisions do not prescribe how the 
effect of such judgments in the State where rendered 
shall be shown. Hence the effect must be proved as a 

fact. 2 

■ 

I Privileges and Immunities of Citizens. — The next suc- 
ceeding provision is that " the citizens of each State shall 
be entitled to all the privileges and immunities of citizens 
of the several States." 3 

The privileges and immunities here in question are those 
only which belong to State citizenship, and which, bat for 
this provision, might be within the reach of unfriendly 
State legislation. A complete enumeration of them has 
never been attempted. Mr. Justice Washington thought 
they might be " all comprehended under the following 
general heads : protection by the government, the enjoy- 
ment of life and liberty, with the right to acquire and 
possess property of every kind, and to pursue and obtain 
happiness and safety, subject nevertheless to such re- 
straints as the government may justly prescribe for the 
general good of the whole. The right of a citizen of one 
State to pass through or to reside in any other State, for 
purposes of trade, agriculture, professional pursuits, or 
otherwise, to claim the benefit of the writ of habeas cor- 
mis, to institute and maintain actions of every kind in the 
courts of the State, to take, hold, and dispose of prop- 
erty, either real or personal, and an exemption from 
higher taxes or impositions than are paid by the citizens 
of other States, may be mentioned as some of the princi- 
pal privileges and immunities of citizens which are clearly 
embraced by the general description of privileges deemed 

1 Gaines v. Relf, 12 How. 472 ; White v. Burnley, 20 How. 235. 

2 Hanley v. Donoghue, 116 U. S. 1. 
* Const., Art. IV. § 2, cl. 1. 



CONSTITUTIONAL EtTLES OF STATE COMITY. 20? 

to be fundamental." * Other judges, while approving of 
this general enumeration, have been careful to say that 
they deem it safer and more in accordance with the duty 
of a judicial tribunal to leave the meaning " to be deter- 
mined in each case upon a view of the particular rights 
asserted and denied therein. And especially is this true 
when we are dealing with so broad a provision, involving 
matters not only of great delicacy and importance, but 
which are of such a character that any merely abstract 
definition could scarcely be correct; and a failure to 
make it so would certainly produce mischief. " 2 

This much it is safe to say, that, " according to the ex- 
press words and clear meaning of this clause, no privileges 
are secured by it but those which pertain to citizenship." 3 
And the term "citizens," as here used, applies only to 
natural persons, members of the body politic, owing alle- 
giance to the State, and not to corporations, which are 
artificial persons created by the legislature, and possess- 
ing only the attributes which the legislature has pre- 
scribed. It is true that corporations are permitted to 
sue in the Federal courts on an assumption that their 
members are citizens of the State in which they have cor- 
porate being ; but it has never been held that they are 
citizens in the sense here intended. 4 

It is not a privilege of a citizen of Mississippi that he 
shall have in Louisiana such rights in property under and 
by virtue of the marriage relation as are given by the 
laws of the latter State to those who. are married or re- 

1 Corfield v. Coryell, 4 Wash. C. C. 371. 380. And poo Smith v. 
Maryland, 18 How. 71 ; Conner v. Elliott, 18 How. 591 ; Ward v. Mary- 
land, 12 Wall. 418. The object of the clause is to give non-residents 
not higher privileges than residents possess, but equal privileges with 
them. Kimmish v. Ball, 129 U. S. 217. 

2 Conner v. Elliott, 18 How. 591, 593; McCready v. Virginia, 94 
U. S. 391, 395. 

8 Conner v. Elliott, 18 How. 591, 593. 

* Paul v. Virginia, 8 Wall. 168, 177, 178; Pembina Mining Co. » 
Pennsylvania, 125 U. S. 181. 



208 CONSTITUTIONAL LAW. 

side therein. Every State regulates these rights for its 
own people according to its own views of right and 
policy. 1 Neither is it a privilege of State citizenship to 
take fish in the public waters of other States. Fisheries 
in public waters belong to the State in which they are, 
and the State may provide how they may be made availa- 
ble for the advantage of its people. Therefore a State 
enactment by which others than citizens of the State are 
forbidden to plant oysters in the soil covered by tide 
waters is not unconstitutional. The people of the State, 
and they alone, own the property ; and they own it, not 
by virtue of citizenship merely, but of citizenship and 
domicile united ; that is to say, by virtue of a citizenship 
confined to that particular locality. 2 

That the taxation of a State which discriminates against 
the citizens of other States is repugnant to the provision 
under consideration has been generally conceded. A stat- 
ute imposing license fees on those carrying on mercantile 
business, but discriminating against those not permanent 
residents of the State, is therefore invalid. 3 

The right to bring suit in those courts of a State which 
have jurisdiction of the subject-matter is the privilege of 
every citizen of the State, and, therefore, is the privilege 
of the citizen of another State, even though the defendant 
is a non-resident also. 4 

Extradition of Offenders. — The Constitution further 

1 Conner v. Elliott, 18 How. 591. 

2 McCready v. Virginia, 94 U. S. 391, 396 ; Chambers v. Church, 
14 E. I. 398; State v. Medbury, 3 P. I. 138; Crandall v. State, 10 
Conn. 340; Slaughter v. Commonwealth, 13 Grat. 767; People v. 
Coleman, 4 Cal. 46. Before slavery was abolished, it was not one of 
the privileges of State citizenship for a master to take his slaves with 
him in passing through a free State, and hold them there in servitude. 
Lemmon r. People, 20 N. Y. 562. 

3 Ward v. Maryland, 12 Wall. 418. See Guy v. Baltimore, 100 
U. S. 434. 

4 Cofrode v. Circuit Judge, 79 Mich. 332. Compare Central R. R. 
Co. v. Ga. Constr. Co., 32 S. C. 319; Eingartner v. Illinois Steel Co., 
94 Wis. 70. 



CONSTITUTIONAL RULES OF STATE COMITY. 209 

provides that u a person charged in any State with trea- 
son, felony, or other crime, who shall flee from justice 
and be found in another State, shall, on demand of the 
executive authority of the State from which he fled, be 
delivered up, to be removed to the State having jurisdic- 
tion of the crime." * 

Whatever doubt there may have been formerly on the 
subject, it is now settled that statutory crimes, though of 
r,ecent creation, are as much within this provision as crimes 
existing at the common law or created by statute previous 
to the adoption of the Constitution. 2 It is not clear, how- 
ever, that every possible offence against the laws was 
meant to be included. The word crime is made use of 
very commonly as embracing only serious offences, in con- 
tradistinction to misdemeanor, which is given to such 
trivial offences as are but lightly punished ; 3 but the line 
of division between the two is not clearly drawn, and is 
not the same in different States. 

No case comes within the Constitution unless there has 
been a fleeing from justice. This implies that the person 
accused must have been within the jurisdiction of the State 
accusing him, and must have fled therefrom. If in fact he 
was never within it, he cannot have fled from its justice ; 
and therefore a person who in another State may have con- 
spired with others to commit an offence in Missouri, is not 
demandable by Missouri as a fugitive. 4 But if he was 
within the State at the time of committing the offence, lie 
is to be held a fugitive if, when sought, he is found outside 
of the State. 5 

The charge against the accused must be made in some 

1 Const., Art. IV. § 2, cl. 2. 

2 Kentucky v. Dennison, 24 How. 66 : Matter of Clark, 9 Wend. 
(N. Y.) 212; Ex parte Reggel, 114 CJ. S. 642. 

8 Hughes's Case, 1 Phil. (N. C.) 57, 04 ; Morton v. Skinner, 48 liul 
123; Taylor v. Taintor, 16 Wall. 866. 

4 Ex parte Smith, 3 McLean, 133. 

5 Roberts v. Reilly, 1 1 6 U. S. 80 ; Matter of Voorhees, 32 N. J 141 j 
Spear on Extradition, 313, 314. 

14 



210 CONSTITUTIONAL LAW. 

due form of law, in some species of judicial proceeding 
instituted in the State from which he is a fugitive. It will 
not be sufficient unless it contains all the legal requisites 
for the arrest of the accused and his detention for trial, if 
he were then within the State. Therefore, nothiug short 
of an indictment, or a complaint under oath, making out a 
prima facie case, can be sufficient. 1 This is to be pre- 
sented to the executive of the same State as the foundation 
for his demand ; but the fact that he makes a requisition 
based upon it is not conclusive of its sufficiency, and this 
may be inquired iuto, not only by the executive on whom 
demand is made, but also by the courts on habeas corpus 
in case the accused is arrested. 2 It has been decided in 
some cases, however, that the courts of the State making 
the demand should be left to decide on the sufficiency of 
their own papers ; 3 and this is a very proper course unless 
the defects are very clear and unquestionable. 

When demand is made in due form, it is the duty of the 
executive on whom it is made to respond to it, and he has 
no moral right to refuse. 4 Nevertheless, if he does refuse, 
no power has been conferred on the Federal courts to com- 
pel obedience, 5 and the governors of States have often 
refused compliance with the demand, when in their opin- 

1 People v. Brady, 56 N. Y. 182; State v. Hufford, 28 Iowa, 391 ; 
Kingsbury's Case, 106 Mass. 223; Ex parte Cubreth, 49 Cal. 436; 
Commonwealth v. Deacon, 10 S. & R. 125. 

2 The executive upon whom the demand is made must decide 
whether the papers show the person to be properly charged with a 
crime, and whether the person is a fugitive. If the papers clearly 
show no legal cause of detention, the courts may release the person, 
but how far they may go in reviewing the Governor's determination 
of the fact as to the person being a fugitive is not well settled. Rob- 
erts v. Reilly, 116 U. S. 80; Ex parte Reggel, 114 U. S. 642. 

3 Johnson v. Riley, 13 Ga. 97 ; State v. Buzine, 4 Harr. (Del.) 572; 
Matter of Voorhees,32 N.J. 141 ; Davis's Case, 122 Mass. 324; Matter 
of Manchester, 5 Cal. 237 ; Ex parte Thornton, 4 Texas, 635 ; Pearce 
v. Texas, 155 U. S. 311. 

4 Kentucky v. Dennison, 24 How. 66. 
* Ibid. 



CONSTITUTIONAL RULES OF STATE COMITY. 211 

ion substantial justice did not require it. The process is 
no doubt sometimes made use of to compel the settlement 
of private demands ; but this is an abuse which it is spe- 
cially incumbent on the authorities of the State making 
the demand to guard against, and if the executive of the 
other State assumes to decide upon the good faith of the 
demand, he takes upon himself a questionable responsi- 
bility, with very inadequate means of discharging it intelli- 
gently and justly. 

When the Federal government has entered into an 
extradition treaty with a foreign government, a fugitive 
from justice brought into this country on process of extra- 
dition should be privileged from prosecution for an offence 
other than that with which he was charged when the 
demand was made upon the foreign government, until a 
reasonable time and opportunity have been given to return 
to the country from which he was taken. 1 But this prin- 
ciple does not obtain where a person is surrendered by 
one State of the Union to another. In such a case there 
is no treaty, constituting the supreme law of the land, and 
limiting the authority of the State. 2 If a fugitive from 
justice is kidnapped in a foreign nation or in a State of 
the Union, that fact does not exempt him from trial and 
punishment by the State within which he is brought. 8 

If a State to which an offender has fled has herself 
against him some unsatisfied demand of justice, it is 
proper for her to proceed to enforce it before honoring a 
requisition. No higher duty can be imposed upon her 
than that of satisfying the demands of her own laws. 4 

.Legislation. — The extradition of fugitives as between 
the States has commonly been made under State legisla- 
tion, and the States in passing laws on the subject appear 

1 United States y. Rauscher, 119 U. S. 407; Commonwealth v, 
Hawes, 13 Bush (Ky.), 697 ; Wharton, Confl, of Laws, § 2965. 

2 Lascelles v, Georgia, its U. S. 587. 

3 Ivor v. Illinois, 119 IT. S. 456; Malum r. ,1 nst ice, 127 U. S. 700; 
Cook v. Hart, 146 V. S. 18.?. 

* Taylor v. Taintor, 16 Wall. 366 ; Matter o( Front man. 24 N. J. 654 



212 CONSTITUTIONAL LAW. 

to have assumed that the duty imposed by the Consti- 
tution was a State duty, performance of which was to be 
demanded by one State and made by the other. Whether 
this is strictly true, or whether, on the other hand, the 
principles apply which govern in the surrender of fugi- 
tives from service, and which would exclude legislation 
by the States, 1 has never been decided. Congress, how- 
ever, at an early day enacted that, " Whenever the exec- 
utive authority of any State or Territory demands any 
person, as a fugitive from justice, of the executive author- 
ity of any State or Territory to which such person has 
fled, and produces a copy of an indictment found, or an 
affidavit made before a magistrate of any State or Terri- 
tory, charging the person demanded with having com- 
mitted treason, felony, or other crime, certified as authentic 
by the Governor or chief magistrate of the State or Terri- 
tory from whence the person so charged has fled, it shall 
be the duty of the executive authority of the State or Ter- 
ritory to which such person has fled to cause him to be 
arrested and secured, and to cause notice of the arrest to 
be given to the executive authority making such demand, 
or to the agent of such authority appointed to receive the 
fugitive, and to cause the fugitive to be delivered to such 
agent when he shall appear. If no such agent appears 
within six months from the time of the arrest, the prisoner 
may be discharged." "Any agent so appointed, who 
receives the fugitive into his custody, shall be empowered 
to transport him to the State or Territory from which he 
has fled." a 

1 Priggv. Pennsylvania, 16 Pet. 539. 

2 Rev. Stat. U. S., §§ 5278, 5279. The article of the Constitution 
providing for the return of fugitive slaves is now of historical interest 
only. Const., Art IV. § 2, cl. 3. Prigg v. Pennsylvania, 16 Pet. 539. 



GUARANTY OF REPUBLICAN GOVERNMENT. 213 



CHAPTER XI. 

THE GUARANTY OF REPUBLICAN GOVERNMENT TO 
THE STATES. 

The Constitution. — It is imposed as a duty upon the 
United States to guarantee to every State in the Union a 
republican form of government. 1 The requirement sprang 
from a conviction that governments of dissimilar princi- 
ples and forms were less adapted to a federal union than 
those which were substantially alike, and that the super- 
intending government ought to possess authority to defend 
the system agreed upon against innovations which would 
bring with them discordant and antagonistic principles. 2 

The terms of this provision u presuppose a pre-existing 
government of the form that is to be guaranteed. As 
long, therefore, as the existing republican forms are con- 
tinued b3 r the States, they are guaranteed by the federal 
Constitution. Whenever the States maj- choose to sub- 
stitute other republican forms, the} 7 have a right to do so, 
and to- claim the federal guaranty for the latter. The 
only restriction imposed on them is, that they shall not 
exchange republican for anti-republican constitutions." 3 

What is Republican. —By republican government is 
understood a government by representatives chosen by 
the people ; and it contrasts on one side with a democracy, 
in which the people or community as an organized whole 
wield sovereign powers of government, and on the other 
with the rule of one man, as king, emperor, czar, or sul 

i Const., Art. IV. § 4. 2 Federalist., Nos 21 ami 43. 

8 Federalist, No. 43. 



214 CONSTITUTIONAL LAW. 

tan, or with that of one class of men, as an aristocracy. 
In strictness a republican government is by no means in- 
consistent with monarchical forms, for a king may be 
merely an hereditary or elective executive while the pow- 
ers of legislation are left exclusively to a representative 
body freely chosen by the people. It is to be observed, 
however, that it is a republican form of government that 
is to be guaranteed ; and in the light of the undoubted 
fact that b}^ the Revolution it was expected and intended 
to throw off monarchical and aristocratic forms, there can 
be no question . but that by a republican form of govern- 
ment was intended a government in which not only would 
the people's representatives make the laws, and their agents 
administer them, but the people would also, directly or 
indirectly, choose the executive. But it would by no 
means follow that the whole body of the people, or even 
the whole body of adult and competent persons, would be 
admitted to political privileges ; and in any republican 
State the law must determine the qualifications for admis- 
sion to the elective franchise. 

As the original States must be understood to have had 
the proper form of government when the Constitution was 
adopted, so the subsequent admission of a State to the 
Union by Congress must be received as a decision that its 
constitution is not objectionable. 

Changes in Government. — A republican government 
once established in a State ma}- be endangered or set 
aside, so as to demand the action of Congress, under this 
provision, in the following several wa}^s : — 

First. By the hostile action of some foreign power, in 
taking military possession of the territory of a State and 
setting up some government therein not established by the 
people themselves. Such a government would not be re- 
publican, whatever its form, because not expressing the 
will of the people governed, but of the foreign power es- 
tablishing it. 

/Second. By the revolutionary action of the people them- 



GUARANTY OF REPUBLICAN GOVERNMENT. 215 

selves in forcibly rising against the constituted authorities, 
and setting the government aside, or attempting to do so, 
for some other. In this case the United States would be 
called upon to act, whatever the form of the government 
proposed. Adequate provision having been made for 
changes in constitutions under regular and peaceful forms, 
and without resort to revolution, it is not contemplated 
that revolution by force shall ever be suffered. The theory 
that the people at will may change their institutions is for 
the time subordinated to their constitution, which they 
provide may be changed in a certain specified mode, but 
by implication agree shall not be changed otherwise. 

When an attempt is made to change institutions in either 
of the modes above specified, it will become the duty of the 
federal government to interpose and protect the people of 
the State in their existing government by the emplo}'ment 
of the military force, to the full extent, if need be, of the 
national power. 1 

Third. In strict observance of the forms prescribed by 
a state constitution for revising or amending it, it would 
be possible for the people of the State to effect such 
changes as would deprive it of its republican character. 
Thus they might in that manner set up a monarchy, or so 
restrict suffrage as to deprive representation altogether of 
its popular character, and thereby establish an aristocracy ; 
and it would then become the duty of Congress to inter- 
fere. But first the question would present itself, whether 
the changes made are so radical in their nature as to ren- 
der the government unrepublican ; and a decision by Con- 
gress in the negative would be final and conclusive against 
interference. 

It is always possible that Congress may assume changes 
in state government to be unwarranted when they are not, 
and thereupon interfere to overturn institutions with which 
they have no right to meddle. This is only saying that 

J Texas v. White, 7 Wall. 700; Luther i>. Borden, 7 How. 1. 



216 CONSTITUTIONAL LAW. 

any power, however necessary and however well guarded, 
may be abused ; but in every State there must be some 
final tribunal for the determination of all probable con- 
troversies : and as Congress is made the final judge in 
this case, there can be no appeal from its decision except 
to forcible resistance. 

Reconstruction. — Whenever a state government has 
been displaced by rebellion or other force, it will become 
necessary for some existing authority to institute proceed- 
ings for restoring it. The proper authority for this pur- 
pose would seem to be the legislature of the Union. As 
in the case of Territories, if the people of the State by 
spontaneous action should originate an unexceptionable 
government for themselves, it might be recognized, and 
the State admitted to representation under it. But to 
prevent confusion some enabling action would generally 
be found advisable, if not absolutely essential. 

Conflicting Claims to Government. — When a dispute 
arises respecting whether a particular instrument has be- 
come established as the constitution of a State, and there 
are parties claiming under and in opposition to it, or when 
the executive or legislative offices of a State are the sub- 
ject of contest, it is always supposed that there exists 
within the State itself proper, legitimate, and effectual au- 
thority for determining the contest. It is not the business 
of the federal authority to interfere in such cases, unless 
regularly called upon to give protection against violence. 
Such contests must be settled by the state judicial tribu- 
nals when the case is such as to admit of it, or b} r the 
legislature, or even by the acquiescence of the people in 
the claims of one of the parties ; and the federal govern- 
ment should accept the settlement as final. The federal 
authorities can have no concern with questions of regular- 
ity in state proceeding, or with questions of what is proper 
or just in state affairs. Nevertheless in the case of a dis- 
puteO state government it may become necessary for the 
political departments of the United States government, in 



GUARANTY OF REPUBLICAN GOVERNMENT. 217 

the performance of their own duties, to recognize one of 
the two as rightful ; and when this takes place the recog- 
nition will bind the government of the United States in all 
its departments, and also the people. 1 

Invasion and Insurrection. — - The United States are 
also required to protect each State against invasion, and, 
on application of the legislature, or of the executive when 
the legislature cannot be convened, against domestic vio- 
lence. 2 This article, as has been truly said, becomes an 
immense acquisition of strength and additional force to 
the aid of any state government in case of internal rebel- 
lion or insurrection against lawful authority ; while, on the 
other hand, by the requirement of a demand for aid every 
pretext for intermeddling with the internal concerns of any 
State, under color of protecting her against unlawful vio- 
lence, is taken away. 3 

Titles of Nobility. — The States are prohibited, as 
Congress is, from bringing an anti-republican feature into 
American institutions b} r the grant of titles of nobility. 4 
The prohibition executes itself, as the titles, should a grant 
be attempted, would be simply void. 

1 Luther v. Borden, 7 How. 1. 

2 Const., Art. IV. § 4 ; Federalist, No. 43. 

8 1 Tuck. Bl., App. 367. 4 Const., Art. I. § 10, cl. 1. 



218 CONSTITUTIONAL LAW. 



CHAPTER XII. 

THE AMENDMENTS TO THE CONSTITUTION. 

Amendments adopted. — The Constitution provides a 
simple, easy, and peaceful method of modifying its own 
provisions, 1 in order that needed reforms may be accepted 
and violent changes forestalled. Fifteen amendments have 
already been made. The most of these have for their 
object to give new rights, or further protection to rights 
before existing. The eleventh amendment merely im- 
poses a restriction upon the federal judicial power, so as 
to exclude from it all cognizance of suits against States 
brought by citizens of other States or citizens or subjects 
of foreign states ; and the twelfth introduces a change in 
the mode of making choice of President and Vice-Presi- 
dent. The first ten amendments and the last three natu- 
rally arrange themselves in two classes, each of which, b} r 
its subject-matter and purpose, is distinctly referable to a 
particular period in the constitutional history of the coun- 
try. One class consists of those which impose limitations 
on the powers of the several departments of the federal 
government, with a view more completely to protect the 
liberties of the people and the reserved rights of the States ; 
and the other is confined in the main to taking from the 
States the power to oppress particular classes of the peo- 
ple, to discriminate unjustly between classes, and to take 
away such rights as are fundamental. The first ten be- 
long to the one class, and the last three to the other. 

1 Const., Art. V. 



AMENDMENTS TO THE CONSTITUTION. 219 

The First Ten Amendments. — The ten amendments 
the purpose of which was to establish guaranties against 
an abuse of the powers which had been granted to the gen- 
eral government, were adopted in pursuance of recom- 
mendations by state conventions when giving assent to 
the Constitution. 1 They all sprung from a distrust of 
power remote from the people, — a distrust which the 
colonial experience had inculcated, and which the events 
leading to the Revolution had intensified. The central 
government, in exchanging the Articles of Confederation 
for the Constitution, was receiving an immense accession 
of power, and it was possible to abuse this power to the 
oppression of the citizen, and to the destruction of rights 
in the States which had never been surrendered. Up to 
that time the States were the special objects of the regard 
and affection of their people respectively. They had en- 
joyed liberty and a large measure of prosperity under 
state laws, they held their property and protected them- 
selves in their domestic relations under the same laws, 
and when oppression had come and grown until it seemed 
intolerable, its source was to be traced to a distant au- 
thority, which overruled or displaced the local laws and 
took away the protection they would have given. Jeal- 
ousy of centralization was therefore a strong if not a 
paramount sentiment, and it found expression in these 
amendments, in which it is declared that certain enumer- 
ated liberties of the people shall not be taken away or 
abridged ; that the enumeration in the Constitution of cer- 
tain rights should not be construed to deny or disparage 
others retained by the people ; and that the powers not 
delegated to the United States by the Constitution, nor 
prohibited by it to the States, were reserved to the States 
respectively, or to the people. 

The Last Three Amendments. — In the lapse of ninety 
years, a stage in political history is readied m which the 

1 They were ratified by a sufficient number of the States to secure 
their adoption before December 15, 1791. 



220 CONSTITUTIONAL LATT. 

fears and anxieties of the people took a new direction. In 
rapid succession one State after another in one third of the 
Union had rejected and thrown off the federal authority, 
and it had only been restored through a war prosecuted 
on both sides with great bitterness and with enormous 
destruction of life and property. The temporary displace- 
ment of federal power bad been accomplished b}~ the action 
of the States in their corporate capacit}', and the admira- 
ble system of self-government had naturally and most 
effectively co-operated in the action. Wide divergences 
in sentiment regarding matters of internal polic}', ripening 
into great estrangement of feeling between the sections, 
had led to the disruption, and when the exhausting war 
was over the same divergence in sentiment and a like es- 
trangement in feeling still prevailed, and were now found 
to centre on the policy to be adopted for restoring and 
strengthening the shattered fabric of government. The 
sentiment of national unit}' had encountered on the field of 
arms the sentiment of devotion to State and section, and, 
though the struggle was over, the causes to some extent 
remained, and might possibly produce like fruit in the 
future. It had been found in vain that the federal author- 
ities held, and the federal courts decided, that under the 
Constitution a State had no right to withdraw from the 
Union ; it was undeniable that for a time certain of 
the States had succeeded in severing their relations and 
setting up a new government ; and though the federal 
authority had demonstrated that it had, under the Consti- 
tution, ample power for self-defence and protection, it was 
deemed wise and prudent to require the States to surren- 
der the institution that was the immediate occasion of the 
civil war, as well as the power to deal unjustly and par- 
tially with classes of the people against whom there might 
be jealousies, prejudices, or antipathies, growing out of 
the struggle through which the country had passed, or out 
of some of the antecedent or concomitant circumstances. 
While, therefore, the first amendments were for the pur- 



AMENDMENTS TO THE CONSTITUTION. 221 

pose of keeping the central power within due limits, at a 
time when the tendency to centralization was alarming to 
many persons, the last were adopted to impose new re- 
straints on state sovereignty, at a time when state powers 
had nearly succeeded in destroying the national sover- 
eignty. 1 

Justice of the Amendments. — Of these amendments it 
may be safely affirmed that the first ten took from the 
Union no power it ought ever to have exercised, and that 
the last three required of the States the surrender of no 
power which any free government should ever employ. 2 
Jf the thirteenth, fourteenth, and fifteenth amendments are 
subject to any just criticism, it must concern not what the 
States are required to surrender so much as the incidental 
expansion of federal legislative and judicial power. 

How adopted. — It is a valuable tribute to the general 
excellency of the Constitution that no convention for its 
revision has ever been convened, nor indeed ever very 
seriously proposed except at a time immediately before 
the civil war, and when a settlement of existing contro- 
versies in that mode seemed to most people an impossi- 
bility. All the amendments originated in Congress, were 
proposed by Congress to the States, and by the States 
were ratified. The questions which their proposal raised 
were in the main political, but there were two questions of 
law of no little importance and nicety. Neither of these, 
however, received authoritative settlement, because in the 
end such a settlement became unnecessary. These ques- 
tions were the following : — 

1. The Constitution 3 requires for the adoption of any 

1 These amendments were declared adopted as follows the thir- 
teenth, Dec. 18, 1865 ; the fourteenth, July 28, 1868; and the fifteenth, 
March 30, 1870. 

2 Those who claim that emancipated slaves should be paid for 
have generally agreed that the United States, and not the States, 
should make the payment. 

8 Const., Art. V. 



222 CONSTITUTIONAL LAW. 

proposed amendment that it shall be ratified by the legis- 
latures or conventions of three fourths of the States. At 
the time when amendments were first proposed some of 
the States had not been restored to their normal and con- 
stitutional relations to the Union, and had not been ad- 
mitted to representation in Congress. Until the)* should 
be, it was by no means certain that the assent of three 
fourths of all the States could be obtained to any amend- 
ment, and the question was made whether States not then 
holding their constitutional relations to the others in the 
Union were to be counted' at all. Fortunately, in the 
delay that occurred while ratification was in progress, 
enough of the States were admitted to representation in 
Congress, and- joined in the ratification, to render the 
question unimportant. 

2. Two States after giving their consent to the four- 
teenth amendment, afterwards, but before three fourths of 
all had ratified, through their legislatures declared the con- 
sent withdrawn. 1 It was scarcely pretended that this 
could have been done if the proper majority of the States 
had previously ratified ; but it was insisted that it might 
be done at any time before the amendment had become 
incorporated in the Constitution. This question also was 
rendered immaterial, and in the same way with the other. 
It is interesting, however, to note that, in a somewhat 
analogous case, it has been repeatedly decided that con- 
sent once given is given finally. Where by statute a muni- 
cipality is permitted, with the consent of a majority of its 
electors, to raise exceptional taxes or assume exceptional 
burdens, an election once held which results in a favorable 
vote is conclusive If, however, the first election results 
in a majority against the proposal, and there is nothing in 

l The two States were Ohio and New Jersey. New York declared 
her consent to the fifteenth amendment withdrawn under like circum- 
stances. Oregon made a like declaration in respect to the fourteenth 
amendment, some time after the proclamation of the Secretary of 
State announcing its ratification. 



AMENDMENTS TO THE CONSTITUTION. 223 

the law which negatives the right to vote again, the case 
stands as if no election had been had, and the sense of 
the people may be taken again and again, and a favorable 
vote at the last election is as effectual as if it had been 
obtained at first. 1 

1 Woods v. Lawrence County, 1 Black. 386 ; Woodward v. Super- 
visors, 2 Cent. Law Jour. 396 ; Society for Savings v. New London, 
29 Conn. 174 ; Supervisors v. Galbraith, 99 U. S. 214. See also Story, 
Com., 4th ed., § 1929, n. ; Miller, Lectures on the Const., 642, 653. 



224 CONSTITUTIONAL LAW. 



CHAPTER XIII. 
CIVIL RIGHTS AND THEIR GUARANTIES. 

Section I. — Religious Liberty. 

\The Constitution. — The Constitution as originally 
adopted declared that "no religious test shall ever be 
required as a qualification to any office or public trust 
under the United States." ' By amendment it was fur- 
ther provided that " Congress shall make no law respect- 
ing an establishment of religion, or prohibiting the free 
exercise thereof." 2 ) Both these provisions, it will be seen, 
are limitations upon the powers of Congress only. Nei- 
ther the original Constitution nor an}' of the eaiTy amend- 
ments undertook to protect the religious liberty of the 
people of the States against the action of their respective 
state governments. The fourteenth amendment is per- 
haps broad enough to give some securities if the} T should 
be needful. 

Establishment of Religion. — By establishment of re- 
ligion is meant the setting up or recognition of a state 
church, or at least the conferring upon one church of spe- 
cial favors and advantages which are denied to others. 8 
It was never intended by the Constitution that the gov- 
ernment should be prohibited from recognizing religion, 
or that religious worship should never be provided for in 
cases where a proper recognition of Divine Providence in 
the working of government might seem to require it, and 
where it might be done without drawing any invidious dis- 
tinctions between different religious beliefs, organizations, 

1 Const., Art. VI. cl. 3. 2 Const., Amendment 1. 

3 1 Tuck. Bl. Com., App. 296 ; 2 Ibid., App., Note G. 



CIVIL EIGHTS. 225 

or sects. The Christian religion was always recognized 
in the administration of the common law ; and so far as 
that law continues to be the law of the land, the funda- 
mental principles of that religion must continue to be rec- 
ognized in the same cases and to the same extent as 
formerly. The propriety of making provisions for the 
appointment of chaplains for the two houses of Congress, 
and for the army and navy, has been sometimes ques- 
tioned ; but the general sentiment of the country has ap- 
proved it, and the States make corresponding provision 
for legislative bodies and state institutions. The federal 
legislation has never gone farther ; it has never undertaken 
to prescribe a religious test for any purpose. Neither has 
it ever assumed the authority to prohibit the free exercise 
of religion anywhere. But the freedom of religion cannot 
be extended to prevent the punishment of crimes. Poly- 
gamy and bigamy are crimes none the less because en- 
couraged by the teachings of a religious sect. " To call 
their advocacy a tenet of religion is to offend the common- 
sense of mankind." ! 

State Guaranties. — With the exception of the provis- 
ions above made, the preservation of religious liberty is 
left to the States, and these without exception have con- 
stitutional guaranties on the subject. In the main these 
are alike, and they may be summed up as follows : — 

1. They establish a system, not of toleration merely, but 
of religious equality. All religions are equally respected 
by the law ; one is not to be favored at the expense of 
others, or to be discriminated against, nor is any distinc- 
tion to be made between them, either in the laws, in 
positions under the law, or in the administration of the 
government. 

1 " Whilst legislation for the establishment of a religion is forbid- 
den and its free exorcise permitted, it does not follow that everything 

Which may he so called can he tolerated. Crime is not the loss odious 
because sanctioned by what any particular sect may designate as re* 
ligion." Field, J., Davis v. Beason, 188 U. S. ooo. 

16 



226 CONSTITUTIONAL LAW. 

2. They exempt all persons from compulsory support 
of religious worship, and from compulsory attendance upon 
the same. 

3. The}' forbid restraints upon the free exercise of re- 
ligion according to the dictates of conscience, or upon the 
free expression of religious opinions. 1 

These are adopted as fundamental principles. No man 
in religious matters is to be discriminated against by the 
law, or subjected to the censorship of the State or of any 
public authority ; and the State is not to inquire into or 
take notice of religious belief or expression so long as the 
citizen performs his duty to the State and to his fellows, 
and is guilty of no breach of public morals or public 
decorum. 2 

Blasphemy, Sc. — But the courts of the Union and 
of the States, in administering the common law, find it 
necessary to take notice that the prevailing religion of the 
country is Christian, 3 and that because of that fact certain 
conduct may constitute a breach of public decorum, and 
therefore be illegal, though it might not be w^here a differ- 
ent religion prevailed. The law of blasphemy depends 
largely for its definition and application upon the generally 
accepted religious belief of the people ; and in the law of 
contracts many provisions might be found to be illegal in 
a Christian country which would be enforced where the 
Mohammedan or some other form of religion prevailed. 
Questions of public policy, as the}' arise in the common 
law, must always be largely dependent upon the prevailing 
system of public morals, and the public morals upon the 



1 In State v. District Board, 76 Wis. 177, the mere reading of the 
King James version of the Bible in the public schools was held to 
violate provisions like the above. For a discussion of kindred cases, 
see note to this case in 29 Am. Law Register, 321, and compare 
Moore v. Monroe, 64 Iowa, 367, where it was held that such reading 
did not make the school a place of worship. 

2 Cooley, Const. Lim., ch. 13. 

a Vidal v. Girard's Executors, 2 How. 127. 



CIVIL EIGHTS. 227 

prevailing religious belief. 1 Legislation may also recognize 
the general religious sentiments of the people in the police 
regulations it establishes and in the statutory offences it 
defines. Thus, it may prohibit secular emplo3 T ments on 
the first day of the week, that day being observed as a day 
of rest and worship by religious people generally ; 2 and it 
may condemn and provide for the punishment of any con- 
duct which is condemned by the common voice of Christian 
nations, though admitted elsewhere, such as cruel sacrifices, 
the practice of polygamy, &c. 3 And it may require that 
all religious worship and observances shall be conducted 
in accordance with the ordinary rules of order, and pun- 
ish whatever extravagances tend to a breach of the public 
peace. But even the law of blasphemy must be so admin- 
istered as to preserve liberty of discussion and argument 
upon the most vital points. 4 

Exemptions. — Whether or not it be wise or politic to 
exempt the property used for religious purposes from tax- 
ation, as is commonly done, it cannot be said to be in 
a legal sense unconstitutional to do so. As has before 
been said, the selection of subjects for taxation is always 
a matter of policy, and the legislation will exempt from 
the burden such as a general regard to the interests of the 
political community may seem to render advisable. 5 If it 
be unwise or unjust, legislation must correct the evil. 
But exemptions, to be valid, must be impartial as between 
sects. 

1 People v. Ruggles, 8 Johns. (N. Y.) 290; Commonwealth v. Knee 
land, 20 Pick. (Mass.) 206; State v. Chandler, 2 Harr. (Del.) 653. 

2 Commonwealth v. Wolf, 3 S. & R. (Penn.) 48 ; Froliekstein v. 
Mobile, 40 Ala. 725. 

3 Spear, Religion and the State, 31 5-3 IS. 

4 People v, Ruggles, 8 Johns. (N. Y.) 200, 203. 

5 But such exemptions are mere favors ; they are to be strictly 
construed. Matter of Mayor, &c. of New York. 11 Johns. (\ V ) 77 , 
Broadway Baptist Church v. McAtee, 8 Bush (Ky.), 608. And they 
may be repealed. Christ Church c. Philadelphia, 24 How 300. 



228 CONSTITUTIONAL LAW. 

Section II. — Security of the Dwelling, and of 
Person and Papers. 

Quartering Soldiers, dec. — The third article of the 
amendments provides that " no soldier shall, in time of 
peace, be quartered in any house without the consent of 
the owner ; nor in time of war but in a manner to be pre- 
scribed by law." j The evil at which this is aimed has been 
so long unpractised in this country, that it is difficult to 
suggest to the mind the possibility that security against it 
may be necessary in a country governed by settled princi- 
ples of law. Nevertheless, a declaration of the indefeasi- 
ble right of the citizen can never be wholly needless. 

Soldiers will be quartered upon the people, if at all, 
under the orders of a superior, and either because of 
some supposed imperious necessity, or in order to annoy 
and injure those who are compelled to receive them. The 
plea will always be that of necessity ; but this can never 
be a truthful plea in time of peace, and if the necessity is 
likely to arise in time of war, the first principles of justice 
demand that it should be provided for by law, and limita- 
tions and restraints imposed. At best it- is an arbitrary 
proceeding : it breaks up the quiet of home ; it appropri- 
ates the property of the citizen to the public use without 
previous compensation, and without assurance' of compen- 
sation in the future, unless the law shall have promised 
it. It is difficult to imagine a more terrible means of op- 
pression than would be the power in the executive, or in 
a military commander, to fill the house of an obnoxious 
person with a company of soldiers, who shall be fed and 
warmed at his expense, under the direction of an officer 
accustomed to the exercise of discretionary authority 
within the limits of his command, and in whose presence 
the ordinary laws of courtesy, not less than the rules of 
law which protect person and property, may be made to 
bend to whim or caprice. 1 Such oppressions were fresh 

1 Cooley, Const. Lim., 6th ed., 373. 



CIVIL EIGHTS. 229 

in the minds of the people when the Declaration of Inde- 
pendence was made, and they then denounced what they 
prohibited by this amendment. It is proper to add that 
this protection has no application in time of war to the 
enemies of the country. 

Unreasonable Searches and Seizures, — The fourth 
article of the amendments has in view invasions of right 
which are more frequent, and of which others may be 
guilty besides those who command the military force of 
the State. Most commonly, perhaps, they consist in a 
disregard of that maxim of constitutional law which finds 
expression in the common saying that every man's house is 
his castle. The meaning of this is that every man under 
the protection of the laws may close the door of his habi- 
tation, and defend his privacy in it, not against private 
individuals merely, but against the officers of the law and 
the state itself. The amendment declares that ( u The right 
of the people to be secure in their persons, houses, papers, 
and effects, against unreasonable searches and seizures, 
shall not be violated ; and no warrants shall issue but 
upon probable cause, supported by oath or affirmation, 
and particularly describing the place to be searched, and 
the persons or things to be seized." 

f The latter clause of the amendment sufficiently indicates 
the circumstances under which a reasonable search and 
seizure may be made. First, a warrant must issue ; and 
this implies, (a) a law which shall point out the circum- 
stances and conditions under which the warrant may be 
granted; (b) a court or magistrate empowered by the 
law to grant it ; (c) an officer to whom it may be issued 
for service. Second, a showing of probable cause ; by 
which is meant the production of satisfactory evidence to 
the court or magistrate, (a) showing that :i case exists in 
which the issue of a warrant would be justified by the law; 
(b) pointing out the place to be searched, and the persons 
or things to be seized if they shall be found there. Third, 
a particular description, in the warrant, of place, person, 



230 CONSTITUTIONAL LAW. 

or things sufficient to guide the officer in executing it. 
Nothing less than this can be sufficient. 1 J 
^The law providing for search-warrants should be limited 
to cases of actual crime, in which the thing which was the 
subject or the instrument of the crime, or the supposed 
criminal, is concealed, or supposed to be concealed, on in- 
dividual premises. The following are the most frequent 
cases: for property stolen, and the supposed thief; for 
property brought into the countiy in violation of the 
revenue laws, and the supposed smuggler ; for imple- 
ments of gaming unlawfully kept ; and for liquors unlaw- 
fully stored for sale. No doubt the right of search may be 
extended by statute to other offences ; but any search to 
obtain evidence of an intent to commit a crime can never 
be legalized.' 2 

The warrant must be executed by a search in the very 
place described, and not elsewhere ; the service should be 
made in the day-time, and without the presence of a 
crowd of people ; 3 and the subject of the search must be 
brought before the court or magistrate, to be disposed of 
according to law. 4 If the officer obeys the command of 
his warrant, and is guilty of no excess or departure, he is 
protected, even though the search proves to be fruitless 
and the showing of cause unfounded. 

Without a search-warrant the doors of a man's dwelling 
may be forced for the purpose of arresting a person known 
to be therein, for treason, felony, or breach of the peace, 
or in order to dispossess the occupant when another, by 
the judgment of a competent court, has been awarded the 
possession. In extreme cases this may also be done for 
the enforcement of sanitary and other police regulations ; 

1 Bishop, Crim. Procedure, §§ 240-246. See West v. Cabell, 153 
U. S. 78. 

2 Wilkes's Case, 2 Wils. 151, and 19 State Trials, 1405 ; Broom, 
Const. Law, 613 ; De Lolrae, Const, of England, ch. 18. 

3 2 Hale, P. C. 150 ; Arch. Cr. Law, 7th ed., 145. 

4 Fisher v. McGirr, 1 Gray (Mass.), 1 ; Green v. Briggs, 1 Curt. 311 \ 
Hey Sing Jeck v. Anderson, 57 Cal. 25L 



CIVIL RIGHTS. 231 

biiil, in general, the owner may close the outer door against 
any unlicensed entry, and defend it even to the taking of 
life if that should become necessary. 1 ) 

f The protection of the Constitution is not, however, con- 
fined to the dwelling-house, but it extends to one's person 
and papers, wherever they may be. It is justly assumed 
that every man may have secrets pertaining to his busi- 
ness, or his family or social relations, to which his books, 
papers, letters, or journals may bear testimony, but with 
which the public, or any individuals of the public who may 
have controversies with him, can have no legitimate con- 
cern ; and if they happen to be disgraceful to him, they 
are nevertheless his secrets, and are not without justifiable 
occasion to be exposed. 2 Moreover, it is as easy to abuse 
a search for the purpose of destroying evidence that 
might aid an accused party, as it is for obtaining evidence 
that would injure him, and the citizen needs protection on 
the one ground as much as on the other. Even a search- 
warrant to seize private papers, letters, and memoranda, 
must be wholty unwarranted, except possibly in cases of 
frauds upon the revenue, where the papers to be searched 
for have been the agencies or instruments by means of 
which the frauds have been accomplished or aided. 3 

1 Bohannon v. Commonwealth, 8 Bush (Ky.), 481 ; Pond u. 'People, 
8 Mich. 150. 

2 Cooley on Torts, 2nd ed. 346. 

3 The seizure of the papers of Algernon Sidney, which were 
made use of as the means of convicting him of treason, and of those 
of Wilkes about the time that the controversy between Great Britain 
and the American Colonies was assuming threatening proportions, 
was probably the immediate occasion for this constitutional pro- 
vision. See Leach v. Money, Burr. 1742 ; s. c. 1 W. Bl. 565, 19 State 
Trials, 1001 and Broom, Const. Law, 525 ; En tick r. Carrington, 
2 Wils. 275; s. c. 19 State Trials, 1030, and Broom, Const. Law, 
558; May, Const. Hist., ch. 10; Trial of Algernon Sidney, ( .* State 
Trials, 817. 

This whole matter is learnedly and elaborately discussed in 
United States v. Boyd, 116 U. S. (510, where the question arose upon 
a revenue statute providing that in ease of an action against an im- 
porter a certain paper should on notice be produced by him, or its 



232 CONSTITUTIONAL LAW. 

^ General Warrants. — A general warrant is one which 
either, (1) describes or names no offender, but leaves the 
ministerial officer to discover and apprehend at discretion ; 
or (2) describes no place to be searched, but gives the 
officer unlimited authority to invade the privacy of indi- 
viduals without restraint. ) Such warrants were not un- 
common in England previous to the decision in Wilkes's 
Case, which forever determined their illegality; 1 and 
there were instances in the Colonies also which were 
among the grievances complained of when the Revolution 
was inaugurated. 2 

( Arrests without Warrant. — There are a few cases in 
which arrests may be made without warrant ; but the law 
gives little countenance to such arrests, and whoever 
makes one must show that the exceptional case existed 
which would justify it. (1) Any one may arrest another 
whom he sees committing or attempting to commit a felony 
or forcible breach of the peace. (2) A peace officer may 
arrest, on reasonable grounds of suspicion of felony ; but 
the person arrested must be at once taken before some 
court or magistrate of competent jurisdiction to take cog- 
nizance of the offence. (3) A peace officer may also make 
arrests without warrant when municipal by-laws are being 
violated in his presence ; 3 but he will be a trespasser if 

contents as stated by the district attorney should be taken as true, 
The court considered the statute bad as violating tbe spirit of the pro- 
hibition of tbe Fifth Amendment against compelling a person to be a' 
witness against himself, as well as that of the Fourth against unreason- 
able searches and seizures. It held that a compulsory production of 
papers to establish a criminal charge or a forfeiture of property was 
illegal whenever a search and seizure would be ; that such compulsory 
production or search and seizure to get evidence of a crime is un- 
reasonable, and differs utterly from a search for stolen property. 
Compare State v. Griswold, 67 Conn. 290. 

1 See last note. 

2 Quincy's Mass. Eep. 51 and 395. A form for a writ of assist^ 
ance, prepared by Governor Hutchinson, is given in these Eeports, 
on p. 418. 

8 Mitchell v. Lemon, 34 Md. 1 76. See Ross v. Leggett, 61 Mich. 445. 



CONSTITUTIONAL LAW. *6d 

he handcuffs or confines without necessity a person so 
arrested. 1 .' 

Section III. — The Prohibition op Slavery. 

Historical. — When the Constitution was adopted slav- 
ery existed in every State save one. The exception was 
the State of Massachusetts, in which it had been judicially 
held, that a provision in the Constitution which declared 
that u all men are born free and equal, and have certain 
natural, essential, and unalienable rights ; among which 
may be reckoned the right of enjoying and defending their 
lives and liberties ; that of acquiring, possessing, and pro- 
tecting property ; in fine, that of seeking and obtaining 
their safety and happiness," — was inconsistent with the 
status of slavery, and therefore entitled every man to his 
freedom. 2 It is not certain that this provision was delib- 
erately adopted in this sense, and it is probable that in 
other States it would not have been construed as confer- 
ring freedom upon slaves ; but neither the clause itself, 
nor the fact that a few slaves obtained their liberty under 
it, attracted general attention at the time, and the relation 
of slavery elsewhere was not sensibly affected. 

But although slavery prevailed in twelve of the original 
States, the interest in and feeling towards it in the north- 
ern and southern portions of the country were so radically 
different, that it became exceedingly difficult to agree upon 
the method in which it should be dealt with by the Con- 
stitution. Its very existence seemed to some persons a 
reproach to those who had just emerged from a successful 
struggle for their own liberties, and were now framing a 
government for their further protection ; and the com- 
promises upon the subject which were finally agreed upon, 

i Griffin v. Coleman, 4 II. & N. 2(55. 

2 Draper Civil War in America, vol. i p. 817 : Bancroft's Hist, of 
U. S., vol. x. p. 365. Slavery thus disappeared in Massachusetts 
very much as it did in England under the decision in Sommereett's 
Case, 20 State Trials, 1 ; Lofft's Report8, 18 ; Broom, Const Law, 106 




234: CONSTITUTIONAL LAW. 

after much difficulty, would perhaps have been impossible, 
had it not been believed by many people in all sections 
that the institution could have but a temporary existence, 
and must before many years be wholly done away with. 1 
And it is a significant fact that the word " slave " or " slavery " 
does not appear in the Constitution, but servitude and the 
slave-trade are vaguely referred to under other designa- 
tions, as if they were things not to be more plainly men- 
tioned in a free constitution. 2 

The foreign slave-trade was abolished in 1 808, — as soon 
as the compromise in the Constitution on that subject would 
permit, — and the existence of slavery in the States did 
not become the subject of serious national controversy' and 
disturbance until the application made in 1819 by the Ter- 
ritory of Missouri for admission to the Union as a State. 
The immediate occasions for excitement at that time were 
the provisions in the constitution which was offered for 
acceptance, which not only recognized the existence of 
slavey, but excluded from the legislature the power to 
abolish it, and, in order to give additional secnritj* to the 
institution, required the adoption of legislation to prohibit 
the admission of free negroes within the State. The con- 
trovers}-, which for a time seemed to threaten the exist- 
ence of the Union, was quieted by the admission of the 
State upon the fundamental condition that no law should 
be passed " b} r which any citizen of either of the States 
in the Union shall be excluded from the enjoyment of any 
of the privileges and immunities to which such citizen is 
entitled under the Constitution of the United States," and 
by providing that " in all that territory ceded by France 
to the United States under the name of Louisiana, which 
lies north of thirty-six degrees thirty minutes north lati- 
tude, excepting only such parts thereof as are included 

1 It was prohibited by common consent in the Northwest Terri- 
tory in 1787. 

2 Everett's Orations, vol iv. p. 390; Madison's Works, vol. iit 
p. 150 j Frothingham, Rise of the Republic, 602. 



CIVIL BIGHTS. 235 

withm the limits [of Missouri], slavey and involuntary ser- 
vitude, otherwise than in the punishment of crime whereof 
the party shall have been duly convicted, shall be and is 
hereby expressly prohibited." 1 This compromise proved 
eventually unsatisfactory to both sections ; the one insist- 
ing that citizens of an}' of the States were of right entitled 
to settle in the Territories with every species of property 
recognized by the state laws, and to be protected therein, 
while in the other the sentiment grew and became domi- 
nant that the federal government ought to prohibit slavery 
in an}' territory subject to its jurisdiction, and to discoun- 
tenance it in every way. A new and further compromise 
became necessary in 1850, but this was followed, two years 
later, by the repeal of the prohibition of slavery north of 
the Missouri Compromise line, and in the rapidly settling 
Territory of Kansas armed conflicts took place between 
those who proposed to introduce slavery and those who 
determined to exclude it. During the decade beginning 
with 1850 the animosity and estrangement between the 
sections increased, until in 1860 a President was chosen 
as an avowed opponent of any further extension of slave 
territory ; and, taking this as conclusive evidence of a 
determination to make unconstitutional war upon their 
interests, all the slaveholding States, with the exception of 
Delaware, Maryland, Kentucky, and Missouri, announced 
their withdrawal from the Union, and in the two States 
last named there were also proceedings which assumed to 
do the same. 

It had never been claimed by any considerable number 
of persons that, as matter of constitutional law, the United 
States could interfere with slavery within the States. The 
whole subject of the domestic relations was left exclusively 
by the Constitution to the States.' 2 Only when slaves es- 

1 Benton, Thirty Years' View, eh. 2 ; Writings of Madison, iii. 
156-199; Stephens, War between the States, ii. bU-175. 

2 Barry v. Mereein, 5 How. 103; Ex rol. liobbs & Johnson, 1 
Woods, 537. 



236 CONSTITUTIONAL LAW, 

caped from service and fled into other States did the 
power of the United States attach, and then it had exclu- 
sive jurisdiction to legislate for their return to their mas- 
ters. 1 The point chiefly in dispute as a proposition of law 
was that Congress might prohibit or abolish slavery in the 
Territories and in the District of Columbia. This was de- 
nied, as being opposed to the spirit of the constitutional 
compromises, and as establishing differences in right and 
privilege as between the citizens of the several States de- 
siring to remove into such Territories or District with 
their property, or having occasion to visit or pass through 
them and take their servants. Some of the subjects of 
dispute were less mooted ; and among these were the right 
of the United States to regulate and prohibit the traffic in 
slaves as between the States, and the right of colored per- 
sons to the privileges of citizenship in the States. The 
latter was denied by the federal Supreme Court in a case 
decided in 1857, and the court, though that particular 
point disposed of the case, took occasion to go further, 
and to deny the power of Congress to prohibit slavery in 
the Territories. 2 By those who disputed this last position 
the opinion of the court was denounced as an unwarrant- 
able attempt of the court to settle a political controversy 
by an ex cathedra and extrajudicial opinion, and a new 
bitterness was brought into the existing excitement, much 
to the detriment of the proper influence and authority of 
the court. 

The war ended in the practical destruction of slavery in 
all the States which had been in rebellion. The President 
had declared emancipation by proclamation, and the armies 
had accomplished it as they advanced. 3 The provisional 
governments all recognized it, and when the reorganized 
States came with new constitutions for admission to repre- 
sentation in Congress, these contained an express prohibi- 

1 Prigg v. Pennsylvania, 16 Pet. 539. 

2 Scott v. Sandford, 19 How. 393. 
8 Story on Const., 4th ed., § 1923. 



CIVIL BIGHTS. 237 

tion of slavery. Still slavery existed in the border States, 
and in order to abolish it there, as well as to give consti- 
tutional formality to the national antislavery proceedings, 
the thirteenth amendment to the Constitution was proposed 
and adopted. 

The Constitution. — This amendment declares, adopting 
the language of the Ordinance of 1787, that tw neither 
slavery nor involuntary servitude, except as a punishment 
for crime whereof the party shall have been duly convicted, 
shall exist within the United States, or any place subject 
to their jurisdiction." The word " slavery " in this country 
has acquired a somewhat technical meaning, and is limited 
to that sort of servitude which has prevailed under the 
state laws, namely, to servitude for life. The prohibition 
of slavery merely might therefore seem to be limited to 
this sort of service, leaving the legislative authorities at 
liberty to establish compulsory service for terms of years 
at discretion. Indeed, such servitude had existed in the 
early histoiy of the country in cases of immigrants known 
as redemptioners, and of some others, and it would be 
easy to suggest exceptional cases in which excuses might 
exist to enact laws for compulsorj 7 service, were the legis- 
lature so disposed. It was deemed important, therefore, 
that the prohibition should include, not slavery merely, 
but all classes of involuntary servitude not imposed as a 
punishment. 

Involuntary Servitude. — The prohibition was not unim- 
portant. Immediately following emancipation, laws were 
passed in some of the late slavcholding States for the 
compulsoiy apprenticeship of colored persons, on terms 
which were made applicable to them alone ; and the pro- 
visions of the indenture were such as evidently assumed 
the inferior and degraded condition of this class of per- 
sons, and had a strong tendency to perpetuate it. In 
some States, also, colored persons were forbidden to en- 
gage in certain ordinary employments except on payment 
of a large license-fee, or on producing to the authorities 



238 CONSTITUTIONAL LAW. 

satisfactory proof of good moral character. It was soon 
decided that compulsory apprenticeship under these partial 
and invidious laws was involuntary servitude within the 
meaning of this amendment, and was therefore forbidden. 1 
It can scarcely be doubted that exclusion from employ- 
ment may as effectually establish involuntary servitude as 
any use of physical force. In so far as one is excluded 
from entering upon common vocations, the sphere of his 
choice is narrowed ; and if the prohibition may be made 
applicable to one or two employments, it may be extended 
to all but one, and at last the class discriminated against 
may be forced to serve in a menial employment, and the 
nominal freedom then becomes degrading slavery. It is 
therefore a just conclusion, that any discrimination which 
narrows to one class, while leaving unrestricted to others, 
the freedom of choice in employments, must be regarded 
as the establishment of involuntary servitude, and there- 
fore forbidden. 

fBut the amendment is not designed to interfere with 
such regulations of service in the domestic relations as 
were formerly admissible, including the service of minors 
in apprenticeship under general laws. The involuntary 
servitude forbidden was such as would not be tolerated by 
the free principles of the common law, and not such a3 
that code permitted in the case of dependent relations. 2 

Enforcement Laws. — The same amendment also pro- 
vides that ' ' Congress shall have power to enforce this 
article by appropriate legislation." Whether this pro- 
vision has any importance must depend upon whether the 
prohibitory clause itself falls short of furnishing a com- 

1 Matter of Turner, 1 Abb. U. S. 84. It is held that the legisla- 
ture may make the breach of particular kind of contract, for example 
a contract to labor, an indictable offence, without violating the 13th 
Amendment. State v. Williams, 32 S. C. 123. 

2 In the case of Robertson v. Baldwin, 165 U. S. 275, the court held 
that the amendment did not make illegal a statute requiring seamen 
to carry out the terms of their agreement, inasmuch as their employ- 
ment demanded special regulations that have long been recognized. 



CIVIL RIGHTS. 239 

plete and sufficient protection. A constitutional provision 
is sometimes, of itself, a complete law for the accomplish- 
ment of the purpose for which it was established, and 
sometimes it merely declares a principle which will be 
dormant until legislation is had to give it effect. When 
the former is the case, the provision is sometimes spoken 
of as self -executing. 

Nearly all the provisions of the Federal Constitution 
which confer legislative or judicial power are inoperative 
for the practical purposes intended until legislation under 
them has given the means, and pointed out the methods, 
by which the powers shall be exercised. The case of the 
judicial power is an apt illustration : it extends to contro- 
versies between citizens of different States, but, before it 
can be applied in actual suits, there must be legislation 
which prescribes what classes of these controversies the 
Federal courts shall be permitted to take cognizance of. 
In like manner, the courts do not take cognizance of cases 
of bankruptcy until the jurisdiction is expressly conferred 
by law, though the judicial power is extended to those cases 
by the Constitution itself. 

With some provisions of the Constitution, however, and 
especially the prohibitory clauses, it is different. A pro- 
hibition of a power in the Federal Constitution defeats any 
attempt at its exercise, and any court, State or Federal, 
that may have cognizance of a case in which the power 
can come in controversy, whether directly or incidentally, 
must take notice of, and act upon, the prohibition. Thus 
the mere declaration that "no bill of attainder shall be 
passed" has been found ample to protect all the people 
against legislative punishment, in cases not within their 
proper cognizance, though no legislation has ever been 
had looking to its enforcement. The case of the prohibi- 
tion of laws impairing the obligation of contracts is a still 
more striking illustration of the force of certain provisions 
standing independently. In a multitude of forms laws 
have appeared which were supposed to violate this provis- 



240 CONSTITUTIONAL LAW. 

ion, and in no case has a court, either State or national, 
had any difficulty in dealing with it, or in declaring the 
law null if it was believed to be within the prohibition. 
Such a provision may well be declared self-executing : it 
is a complete and perfect law in itself, which all courts 
must take notice of and enforce whenever a disregard 
of it comes to their judicial notice, without any statute 
requiring or expressly permitting it. 

The prohibition of slavery and involuntary servitude is 
self-executing in this sense. All State laws then in exist- 
ence which were inconsistent with it were by its inherent 
force nullified, and all State legislation which should 
thereafter be attempted inconsistent with it was rendered 
null in its incipiency. And while courts shall be in exist- 
ence competent to issue the writ of habeas corpus, and 
to administer common law remedies, it seems difficult to 
imagine a case of attempt at a violation or evasion of this 
declaration of universal liberty that shall be wanting in 
appropriate redress. 1 

Section IV. — The Guaranties of Life, Liberty, and 
Equality. 

The Constitution. — It is declared by the fourteenth 
article of the amendments, that ".no State shall deprive 
any person of life, liberty, or property without due process 
of law, nor deny to any person within its jurisdiction the 
equal protection of the laws." j This provision is directed 
at State action only, not at the action of individuals ; 2 but, 

1 The Thirteenth Amendment of its own force abolished slavery, 
and, unlike the Fourteenth, permits Congress primarily and directly 
to legislate so as to meet all cases affected by it. But it relates only to 
slavery and servitude, not to unequal class legislation. The denial 
to negroes of equal admission into inns, cars, theatres, &c. with whites, 
is not a form of servitude. It is a civil injury. This amendment, 
therefore, gives Congress no power to pass an act forbidding such 
denial. Civil Rights Cases, 109 U. S. 3. 

* Virginia v. Rives, 100 U. S. 313 ; Civil Rights Cases, 109 U. S. S, 



CIVIL EIGHTS. 241 

since the State must act through some of its departments 
or officers, under the term " State action" will be included 
the action of any department or instrumentality represent- 
ing the State. A State officer may therefore be punished 
for excluding persons from jury service because of their 
race. 1 Congress has power to enforce these provisions. 
Its action, however, must be by way of correcting and 
overriding action taken by the State, and not by primary 
direct legislation as to the subject-matter. 2 The Four- 
teenth Amendment did not give the national government 
the general authority to regulate the relations between 
individuals. That power still inheres in the State; but 
the national government can now protect the individual 
against State action that would be subversive of funda- 
mental rights. 

Due Process of Law. — To a proper appreciation of 
this guaranty it is important, first, to have correct under- 
standing of the terms made use of. The terms are gen- 
eral, and can only be understood when their known and 
customary application is explained. This is especially the 
case with the phrase " due process of law." It has long 
been in use, among law writers and in judicial decisions, 
as implying correct and orderly proceedings, which are 
due because they observe all the securities for private 
right which are applicable in the particular case. In this 
sense it is synonymous with "law of the land," as used 
in the famous twenty-ninth chapter of Magna Charta, 

1 Ex parte Virginia, 100 U. S. 339. If, however, the legislative 
department of the State has furnished a proper remedy, the error of 
the judicial department in applying the law is not regarded as State 
action, and the State does not thereby deprive of property without due 
process of law. Arrowsniith v. Ilarmoning, 1 1 S U. S. 194; In re Con- 
verse, 137 U. S. 624. See Davis r. Texas, 139 U. S. G51. 

2 Civil Rights Cases, 109 U. S. 3. See the statement, ante, p, IS. 
The first ton amendments are intended to protect the individual against 
tyrannical action on the part of the national government. The Thir- 
teenth and Fourteenth protect him against tyrannical action on the 
part of the State. 

16 



242 CONSTITUTIONAL LAW. 

which declared that " no freeman shall be taken, or im« 
prisoned, or disseized, or outlawed, or banished, or any- 
ways destroyed, nor will the King pass upon him or 
commit him to prison, unless by the judgment of his peers 
or the law of the land." The identity of the two in 
meaning and purpose is now well settled. 1 

Admitting the identity of meaning, however, does not 
of itself bring us to an understanding of the purpose and 
effect of this guaranty. " What is the law of the land? 
It cannot be the common law merely. Statute law is 
in the highest sense the law of the land ; and the legis- 
lative department, created for the very purpose of de- 
claring from time to time what shall be the law, possesses 
ample powers to make, modify, and repeal, as public 
policy or the public need shall demand. Such being the 
case, the question presents itself whether anything may be 
made the law of the land, or may become due process of 
law, which the legislature under proper forms may see fit 
to enact? To solve this question we have only to con- 
sider for a moment the purpose of the clause under ex- 
amination. That purpose, as is apparent, was individual 
protection by limitation upon power ; and any construc- 
tion which would leave with the legislature this unbridled 
authority, as has been well said by an eminent jurist, 
1 would render the restriction absolutely nugatory, and 
turn this part of the Constitution into mere nonsense. 
The people would be made to sa} T to the two Houses, You 
shall be vested with the legislative power of the State, but 
no one shall be disfranchised or deprived of the rights or 
privileges of a citizen unless you pass a statute for that 
purpose. In other words, you shall not do the wrong 
unless you choose to do it.' 2 

1 Murray's Lessee v. Hoboken Land Co., 18 How. 272, 276. 

2 Taylor v. Porter, 4 Hill (N. Y.), 140, 143. See Hoke v. Hender- 
son, 4 Dev. (N. C.) 1 ; Kinney v. Beverley, 1 Hen. & M. (Va.) 531; 
Norman v. Heist, 5 W. & S. (Penn.) 171 ; Janes v. Reynolds, 2 Tex. 
250. See also Davidson v. New Orleans, 96 U. S. 97. 



CIVIL EIGHTS. 243 

•• To quote the words of an eminent advocate and states- 
man, ' Everything which may pass under the forms of an 
enactment is not to be considered the law of the land. If 
this were so, acts of attainder, bills of pains and penalties, 
acts of confiscation, acts reversing judgments, and acts 
directly transferring one man's estate to another, legisla- 
tive judgments, decrees, and forfeitures in all possible 
forms, would be the law of the land. Such a strange 
construction would render constitutional provisions of the 
highest importance completely inoperative and void. It 
would tend directly to establish the union of all the powers 
in the legislature. There would be no general permanent 
law for courts to administer or men to live under. The 
administration of justice would be an empty form, an idle 
ceremony. Judges would sit to execute legislative judg- 
ments and decrees, not to declare the law or administer 
the justice of the country.' And he gives us a definition 
of his own, in the concise and comprehensive language of 
which he was so eminently the master : ' By the law of the 
land is most clearly intended the general law, — a law 
which hears before it condemns, which proceeds upon 
inquiry, and renders judgment only after trial. The mean- 
ing is that every citizen shall hold his life, liberty, prop- 
erty, and immunities under the protection of the general 
rules which govern society.' 1 ' As to the words from 
Magna Charta,' says another eminent jurist, ' after vol- 
umes spoken and written with a view to their exposition, 
the good sense of mankind has at length settled down to 
this : that they were intended to secure the individual from 
the arbitrary exercise of the powers of government, unre- 
strained by the established principles of private right and 
distributive justice.' 2 

1 Webster in Dartmouth College u. Woodward, 4 Wheat 518; 
Webster's Works, v. 487. 

2 Bank of Columbia v. Okely, 4 Wheat. 285. See also discussion 
of the matter in Efagar v. Reclamation Dist., ill l T . 8. 701 ; Dent * 
West Virginia, 129 I . S. 114. 



244 CONSTITUTIONAL LAW. 

" Such have been the views of able jurists and states- 
men ; and the deduction is that life, liberty, and property 
are placed under the protection of known and established 
\ principles which cannot be dispensed with either gen- 
erally or specially ; either by courts or executive officers, 
or by legislators themselves. Different principles are 
\ applicable in different cases, and require different forms 
and proceedings ; in some they must be judicial ; in others 
the government may interfere directly, and ex parte ; but 
due process of law in each particular case means such an 
exertion of the powers of government as the settled max- 
ims of law permit and sanction, and under such safeguards 
for the protection of individual rights as those maxims 
prescribe for the class of cases to which the one being 
dealt with belongs. 

" When life and liberty are in question there must in 
every instance be judicial proceedings ; and that require- 
ment implies an accusation, a hearing before an impartial 
tribunal, with proper jurisdiction, and a conviction and 
judgment before the punishment can be inflicted." 1 In 
general, whatever the State establishes will be due process 
of law, so that it be general and impartial in operation, 
and disregard no provision of Federal or State Constitu- 
tion. Usually, however, an accused person will be entitled 
to the judgment of his peers, unless that mode of trial is 
expressly dispensed with by law. There may be military 
tribunals for the trial of military offences, but these must 
keep strictly within the limits of their legal authority. 
The common law is over and above all tribunals admin- 
istering any other code, and is watchful and vigilant to 
keep them within the limits of their jurisdiction, and to 
punish their members if they usurp authority not belong- 
ing to them. 2 

Whether a mode of procedure is due process depends 

1 Story on Const., 4th ed., §§ 1943-1946. 

2 Story on Const., § 1947; Cooley, Const. Lim., ch. }\ ; Milligan, 
ex parte, 4 Wall. 2, 



CIVIL EIGHTS. 245 

not upon considerations of form, but upon the principles 
underlying the process. 1 "Administrative and remedial 
process may be changed from time to time, but only with 
due regard to the landmarks established for the protection 
of the citizen." 2 The States, therefore, may prescribe 
their own modes of proceeding and trial ; the accusation 
may be by grand jury or without one ; 3 the trial, by jury 
or by court. 4 . Proceedings to condemn land may be be- 
fore special tribunals, and notice of the proceedings may 
be given by publication and not personally. 5 In tax pro- 
ceedings the general system established in this country for 
assessment and collection is due process. 6 If a tax is 
specific, there is no need of notice and a hearing. If it 
is not, there must be notice and an opportunity for hear- 
ing, but an administrative board is a proper tribunal to 
conduct the hearing, and the law prescribing the time of 

1 " If the laws enacted by a State be within the legitimate sphere of 
legislative power, and their enforcement be attended with the observ- 
ance of those general rules which our system of jurisprudence pre- 
scribes for the security of private rights, the harshness, injustice, 
and oppressive character of such laws will not invalidate them as affect, 
ing life, liberty, or property without due process of law." Missouri 
Pac. Ry. Co. ivHumes, 115 U. S. 512; Hallinger v. Davis, 146 U. S. 
314; Marchant v. Penn. R. R. Co., 153 U. S. 380; Iowa Central Ry. 
Co. v. Iowa, 160 U. S. 389. 

2 Cooley, Const. Lim., 6th ed., 334 ; Hurtado v. California, 110 U. S. 
516 ; Montana Co. v. St. Louis Mining Co., 152 U. S. 160. 

3 Hurtado v. California, 110 U. S. 516, where Matthews, J., uses 
this language: "It follows that any legal proceeding enforced by 
public authority, whether sanctioned by age and custom or newly de- 
vised in the discretion of the legislative power, in furtherance of the 
general public good, which regards and preserves those principles of 
liberty and justice, must be held to be due process." 

4 Walker y. Sauvinet, 92 U. S. 90. Summary proceedings are duo 
process in disbarring an attorney. Ex parte Wall, 107 V. 8. 265. 
Liquor selling may be punished as a contempt. Eilenbecker v. Dist. 
Ct., 134 U. S. 31. 

6 Pearson v. Yewdall, 95 U. S. 294; Holing v. Railway Co., 130 
U. S. 559. 

,; Kelly v. Pittsburgh, 104 U. S. 78; Fallhrook Irrigation Durt. « 
Bradley, 164 U- S. 112, 



246 CONSTITUTIONAL LAW. 

its meetings is sufficient as notice. So it is due process 
if the tax is laid without notice, provided in judicial pro- 
ceedings for its collection the tax-payers have an oppor- 
tunity to be heard. 1 

Life and Liberty. — These words are used in constitu- 
tional law as standing for and representing all personal 
rights whatsoever, except those which are embraced in the 
idea of property. 2 The comprehensive word is " liberty " ; 
and by this is meant, not merely freedom to move about 
unrestrained, but such liberty of conduct, choice, and 
action as the law gives and protects. 3 Liberty is some- 
times classified as natural liberty, civil liberty, and politi- 
cal liberty. The first term is commonly employed in a 
somewhat vague and indeterminate sense. One man will 
perhaps understand by it a liberty to enjoy all those rights 
which are usually regarded as fundamental, and which all 
governments should concede to all their subjects ; but as 
it would be necessary to agree what these are, and the 
agreement could only be expressed in the form of law, the 
natural liberty, so far as the law could take notice of it, 
would be found at last to resolve itself into such liberty as 
the government of every civilized people would be expected 
by law to define and protect. Another by natural liberty 

1 McMillan v. Anderson, 95 U. S. 37 ; Davidson v. New Orleans, 
96 U. S. 97; Hagar v. Keclamation Dist., Ill U. S. 701 ; Kentucky 
R. P. Tax Cases, 115 U. S. 321 ; Lent v. Tillson, 140 U. S. 316. See 
also Paulsen v. Portland, 149 TJ. S. 30. 

2 In Chapter XVI. the principles of the law affecting the protection 
of property are considered. In the following pages of this chapter 
there is a discussion of the power and authority of the State to regu- 
late for the common well-being the conduct of an individual in certain 
relations, or in the management and disposition of his property. It 
is to be noticed that, although we are considering the constitutional 
limitation that no person shall be deprived of liberty or equality with- 
out due process, there is necessarily an allusion to the deprivation of 
property, because a regulation affecting the use of property may be 
of such a character that the value of property will be destroyed by 
its enforcement. 

3 Allgeyer v. Louisiana, 165. U. S. 578. 



CIVIL EIGHTS. 247 

may understand that freedom from restraint which exists 
before any government has imposed its limitations. But 
as without government only a savage state could exist, 
and any liberty would be only that of the wild beast, in 
which every man would have an equal right to take or hold 
whatever his agility, courage, strength, or cunning could 
secure, but no available right to more, it is obvious that a 
natural liberty of this sort would be inconsistent with any 
valuable right whatever. A right in any valuable sense 
can only be that which the law secures to its possessor, 
by requiring others to respect it, and to abstain from its 
violation. Rights, then, are the offspring of law ; they 
are born of legal restraints ; by these restraints every 
man may be protected in their enjoyment within the pre- 
scribed limits ; without them possessions must be obtained 
and defended by cunning or force. 

f Civil Liberty and Political Liberty. — Civil liberty may 
be defined as that condition in which rights are estab- 
lished and protected, by means of such limitations and 
restraints upon the action of individual members of the 
political society as are needed to prevent what would be 
injurious to other individuals, or prejudicial to the general 
welfare. This condition may exist in any country, but its 
extent and securities must depend largely upon the degree 
of political liberty which accompanies it. Political liberty 
may be defined as consisting in an effectual participation 
of the people in the making of the laws. 1 

Equality. — The theory of our institutions is, that every 
man's civil liberty is the same with that of others, — that 
all men are equal before the law in rights, privileges, and 
legal capacities. Every person, however low, or degraded, 
or poor, is entitled to have his rights tested by the same 
general laws which govern others. A supposed pauper is 
as much entitled to a hearing before he can be consigned 
to the workhouse, as is any other person whose liberty is 

1 As to -what is property, see post, Ch. XVI. sec. 2. 



248 CONSTITUTIONAL LAW. 

threatened. 1 A supposed insane person cannot be com- 
mitted to an asylum against his will without a judicial 
investigation ; 2 nor can a man's property be seized and 
destroyed, or moved off as a nuisance, at the mere discre- 
tion or on the judgment of a ministerial officer. 3 A State, 
therefore, has no business to bestow favors or to establish 
unjust discriminations. It nevertheless becomes impor- 
tant to the general welfare that special privileges should 
be granted in some cases, because from the nature of the 
case there cannot be a general participation. If a national 
bank is essential, everybody cannot be a corporator ; if a 
railroad is to be built, the franchise must necessarily be 
given into the hands of a few persons. In these and 
other cases falling within similar reasons, special charters 
may be granted without giving cause for complaint. But 
it is a just rule of construction that all grants of franchise 
and privilege are to be strictly construed ; the State will 
be presumed to have granted in plain terms all it intended 
to grant at all. 4 

This theory of equal protection of the laws is expressed 
and emphasized in the Fourteenth Amendment. That 
amendment was designed primarily to protect the emanci- 
pated slave in his rights as a free man, and to prevent dis- 
crimination against him on account of his color. 5 For 
instance, no State can entirely exclude negroes from jury 
service because of their color, for such exclusion is a 
denial of the equal protection of the laws. 6 But the 

1 Portland v. Bangor, 65 Me. 120. 

2 Van Deusen v. Newcomer, 40 Mich. 90. 

3 Fisher v. McGirr, 1 Gray (Mass.), 1 ; Darst v. People, 51 111. 286; 
State v. Paul, 5 R. I. 185; Miller v. Burch, 32 Tex. 208. 

4 Charles River Bridge v. Warren Bridge, 11 Pet. 420, 544 ; Perrine 
v. Canal Co., 9 How. 172; Wheeling, &c. Bridge Co. v. Wheeling 
Bridge Co., 138 U. S. 287. 

5 Slaughter House Cases, 16 Wall. 36; Strauder v. West Virginia, 
100 U. S. 303. ' 

6 Strauder v. West Virginia, 100 U. S. 303; Ex parte Virginia, 
Id. 339 : Bush v. Kentucky, 107 U. §. \IQ. But a colored man is not 



CIVIL RIGHTS. 249 

amendment is not limited in its effect to colored persons. 
All persons in the United States are protected by its pro- 
visions, and the word " person " is held to embrace residenl 
aliens 1 and corporations. 2 

The guaranty of equal protection is not to be under- 
stood, however, as requiring that every person in the lane 
shall possess precisely the same rights and privileges as 
every other person. The amendment contemplates classes 
of persons, and the protection given by the law is to be 
deemed equal, if all persons in the same class are treated 
alike under like circumstances and conditions both as to 
privileges conferred and liabilities imposed. 3 The classi- 
fication must be based upon reasonable grounds ; it can- 
not be a mere arbitrary selection. 4 There may be different 
courts of appeal for the hearing of the same kinds of causes 
tried in different parts of the same States. 5 Local assess- 
ments upon property specially benefited are valid, if equal 
within the class benefited. 6 Railroads may be made a 

entitled to a trial jury composed in part of negroes. Virginia v. Rives, 
100 U. S. 313. See In re Wood, 140 U. S. 278; and also Gibson v. 
Mississippi, 162 U. S. 565 ; Williams v. Mississippi, 170 U. S. 213. 

1 Yick Wo ?;. Hopkins, 118 U. S. 356. 

2 Pembina Mining Co. v. Pennsylvania, 125 U. S. 181 ; Smyth v. 
Ames, 169 IT. S. 466. 

8 Soon Hing v. Crowley, 113 U. S. 703; Hayes v. Missouri, 120 
U. S. 68; Home Ins. Co. v. New York, 134 U. S. 594; Pembina Min- 
ing Co. v. Pennsylvania, 125 U. S. 181 ; Crowley v. Christensen, 137 
U. S. 86 ; Marcbant y. Penu. R. R. Co., 153 U. S. 380; Jones v. Brim, 
165 U. S. 180. " Class legislation discriminating against some and 
favoring others is prohibited ; but legislation which, in carrying out a 
public purpose, is limited in its application " is not within the prohi- 
bition of the amendment, " if within the sphere of its operations it 
affects alike all persons similarly situated." Barbier v. Connollv, 113 
U. S. 27. 

4 Gulf, &c. Ry. w.Ellis, 165 U. S. 150. 

5 Missouri y. Lewis, 101 U. S. 22. So in murder trials more chal- 
lenges may be given to the State in cities than in country districts. 
Hayes y. Missouri, 120 U. S. 68. 

6 Walston v. Nevin, 128 U. S. 578; Wurts v. lToagland, 114 U. S 
606; Ford v. Delta, &c. Land Co., 164 U. S. 662. 



250 CONSTITUTIONAL LAW. 

special class for taxation 1 and other purposes. 2 The 
California Chinese Laundry Cases afford good illustrations 
of the limits of the principle. An ordinance forbidding 
washing between certain hours in all public laundries 
within certain limits of a city is good, 3 but one forbidding 
the carrying on the laundry business within the city at all 
without the consent of certain officers is invalid, if the con- 
sent is arbitrarily withheld from all Chinamen and granted 
to other persons. 4 

The Police Power. — The authority to establish, for the 
intercourse of the several members of the body politic with 
each other, those rules of good conduct and good neigh- 
borhood which are calculated to prevent a conflict of rights 
and to insure to each the uninterrupted enjoyment of his 
own, so far as is reasonably consistent with a correspond- 
ing enjoyment by others, is usually spoken of as the au- 
thority or power of police. This is a most comprehensive 
branch of sovereignty, extending as it does to every per- 
son, every public and private right, everything in the na- 
ture of property, every relation in the State, in society, 
and in private life. 5 The use of the public highways is 

1 Kentucky R. R. Tax Cases, 115 U. S. 321. The same is true of 
express companies. Pacific Ex. Co. v. Seibert, 142 U. S. 339 ; Adams 
Ex. Co. v. Ohio, 165 U. S. 194. And of telegraph companies. W. U. 
Tel. Co. v. Indiana, 165 U. S. 304. And the legislature may authorize 
different modes of assessment for different properties, providing the 
rule of assessment is the same. Winona, &c. Land Co. v. Minnesota, 
159 U. S. 526. 

2 Missouri Pac. Ry. Co. v. Humes, 115 U. S. 512; Same v. Mackey, 
127 U. S. 205. A requirement that railroads pay the expense of a 
railroad commission does not deprive them of equality. Charlotte, 
&c. R. R. Co. v. Gibbes, 142 U. S. 386; New York v. Squire, 145 U. S. 
175. 

a Barbier v. Connolly, 113 U. S. 27; Soon Hing v. Crowley, 113 
U. S. 703. 

4 Yick Wo v. Hopkins, 118 U. S. 356. An ordinance requiring all 
Chinese who remain in a city to live within a certain district is void. 
In re Lee Sing, 43 Fed. Rep. 359. 

5 Commonwealth v. Alger, 7 Cush. (Mass.) 53; Thorpe v. Railroad 
Co., 27 Vt 140. 



CIVIL BIGHTS. 251 

regulated under it; so are the public . fisheries and mines, 
if any, and so are all the occupations of life. The domes- 
tic relations are formed, regulated, sustained, and dissolved 
under the rules it prescribes : the age at which a child be- 
comes emancipated, the terms under which he may be 
allowed to apprentice himself or be forced by the public 
authorities to do so, and the measure of independent 
action in the marriage relation, are all determined by its 
rules. These rules seldom raise any question of constitu- 
tional authority, but it is possible for them to be pushed 
to an extreme that shall deny just liberty. 

The Fourteenth Amendment is held not to have taken 
from the States the police power reserved to them at the 
time of the adoption of the Constitution. 1 It does not 
deprive the States of the right to preserve order within 
their limits, to pass laws against crimes and punish offend> 
ers, to regulate relations between individuals, to control 
for the public good the use of private property, to pro* 
tect the health, life, and safety of the people, and, to 
that end, not only to enact suitable legislation, but to 
destroy private property that is dangerous to the well* 
being of the State. In the exercise of this power regard 
must be paid to the fundamental principles of civil liberty, 
and to processes that are adapted to preserve and secure 
civil rights ; persons cannot arbitrarily be deprived of equal 
protection of the laws, or of life, liberty, or property, be- 
cause the State purports to be exercising the police power. 3 

1 Slaughter House Cases, 16 Wall. 36; Barbier v. Connolly, 113 
U. vS. 27 ; Mugler y. Kansas, 123 U. S. 623. 

2 " The legislature may not, under the guise of protecting the pub- 
lic interests, arbitrarily interfere with private business, or impose un- 
usual and unnecessary restrictions upon lawful occupations. In other 
words, its determination as to what is a proper exercise of its police 
powers is not final or conclusive, but is subject (o the supervision of 
the courts." Brown, J., in Lawton w. Steele, 152 IT. S. 133, 137. See 
also In re Jacobs, 98 N. Y. 98; Ex parte Whitwell, 98 Cal. 73; State 
v. Julow, 129 Mo. 163 ; People v. Gillson, 109 N. Y. 389 ; State r. Good- 
will, 33 W. Va. 179; Ex parte Keeler, 45 S. C. 587. " ll". therefore, 
a statute purporting to have been enacted to protect the public health, 



252 CONSTITUTIONAL LAW. 

And yet what is the due process, that must be observed, 
is necessarily different under different circumstances. 
Sometimes summary proceedings are sufficient. The sum- 
mary abatement of nuisances without judicial process or 
proceedings was well known to the common law prior to 
the adoption of the Constitution, and it cannot be sup- 
posed that the provisions of the Fourteenth Amendment 
were intended to prevent such action. 1 And the exercise 
of this power in the destruction of property prejudicial to 
the health, morals, or safety of the community, or in the 
prohibition of its use in a particular way, is very different 
from taking property for public use, and it is not neces- 
sary that the State should make compensation therefor. 2 

Marriage. — This is a relation formed by the consent 
of two persons of opposite sexes under natural laws, and 
in a general sense the right to form it is universal. But, 
as with every other conventional right, circumstances 
create exceptions, and general rules become necessary by 
means of which the exceptions may be determined. The 
relation is the most important that can exist in the state ; 
the well-being of society depends on its preservation in its 
purity, and it is of the highest importance that those mar- 
riages should be prohibited that would be unfit, and that 
would tend to demoralize the community, or in their pro- 

the public morals, or the public safety, has no real or substantial re- 
lation to those objects, or is a palpable invasion of rights secured by 
the fundamental law, it is the duty of the courts to so adjudge, and 
thereby give effect to the Constitution." Harlan, J., in Mugler v. 
Kansas, 123 U. S. 623. 

1 Lawton v. Steele, 152 IT. S. 133, where the court held that the 
fisheries of a State were properly protected by the exercise of the 
police power for the preservation of the food supply of the State, and 
that the summary destruction of fishing nets was not a deprivation 
without due process. " While the legislature," said the court, " has no 
right arbitrarily to declare that to be a nuisance which is clearly not 
so, a good deal must be left to its discretion in that regard, and if the 
object to be accomplished is conducive to the public interests, it may 
exercise a large liberty in the choice of means employed." 

a See post, Ch. XVI. sec. 2. 



CIVIL MGHTS. 253 

geny to give to society a debased offspring. On these 
grounds the marriages of immature persons are prohibited, 
and also those of persons unsound in mind. No doubt 
these regulations might go much farther than they do ; 
and they are supplemented by others which require certain 
forms, in order to publicity and certainty of evidence, and 
to guard against frauds. The legal right may therefore 
be expressed thus : every one has lawful right to marry, 
who possesses the capacity and qualifications required 
by law, with a person of the opposite sex having the like 
capacity and qualifications, whose consent is obtained, 
and with whom the legal conditions to marriage are 
observed. 

If the regulations apply universally and impartially, a 
question of constitutional law can scarcely arise upon 
them, for every independent State must be at liberty to 
regulate the domestic institutions of its people as shall 
seem most for the general welfare. A regulation, how- 
ever, that should apply to one class exclusively, and which 
should not be based upon any distinction between that 
class and others which could be important to the relation, 
must be wholly unwarranted and illegal. This principle 
is conceded, but it is not easy to determine what regula- 
tion would come within it. Many States prohibit the 
intermarriage of white persons and negroes ; and since 
the Fourteenth Amendment this regulation has been con- 
tested as the offspring of race prejudice, as establishing 
an unreasonable discrimination, and as depriving one 
class of the equal protection of the laws. Strictly, how- 
ever, the regulation discriminates no more against one 
race than against the other ; it merely forbids marriage 
between the two. Nor can it be said so to narrow the 
privilege of marriage as practically to impede or prevent 
it. Race prejudice no doubt has had something to do 
with establishing it, but it cannot be said to be so entirely 
without reason in its support as to be purely arbitrary. 
The general current of judicial decision is, that it deprives 



254 CONSTITUTIONAL LAW. 

a citizen of nothing that he can claim as a legal right, 
privilege, or exemption. 1 

Divorce. — As with marriage, so with divorce ; every 
State will establish such rules as seem best for the asso- 
ciated people. The following rules of law may be con- 
sidered settled: — 1. That the legislature may lay down 
general rules of divorce, or it may prescribe a particular 
rule for a particular case ; in other words, may grant spe- 
cial divorces at will. This is the rule in the absence of 
constitutional provisions on the subject, but in a major- 
ity of the States legislative divorces are now prohibited. 

2. That the idea of vested rights, as it applies to prop- 
erty, has no application to the domestic relations. There- 
fore, one cannot complain that he is deprived of a vested 
right, though the rule prescribed under which his mar- 
riage is dissolved seems to him unreasonable or unjust. 2 

3. That a mere legislative act, where legislative divorces 
are not prohibited, is due process of law for this purpose, 
and, as in the case of the passage of any other law, its 
justice cannot become the subject c f ''ndicial inquiry. 

4. That, when divorce is by law made a judicial proceed- 
ing, the right to a hearing is the same that exists in con- 
troversies over property rights, and is indefeasible. 5. No 
State can establish rules for divorce for anv but its own 
people, nor grant divorces to those not domiciled within 
its own limits. It is under this principle that questions 
of constitutional right are likely to arise. The principle 
is clear, but attempts are often made to avoid it by going 
from one jurisdiction, and obtaining a merely colorable 
residence in another, for the purposes of divorce. A 
divorce obtained under such circumstances is wholly un- 
authorized and void for want of authority in the State 

1 State v. Jackson, 80 Mo. 175 ; State v. Gibson, 36 Ind. 389 ; State 
v. Hairston, 63 N. C. 451 ; Lotias v. State, 3 Heisk. (Tenn.) 287; Ex 
parte Hobbs and Johnson, 1 Woods, 537 ; State v. Tutty, 41 Fed. Eep. 
753. 

2 Starr v. Pease, 8 Conn. 541 ; Crane v. Meginnis, 1 Gill & J. (Md.) 
463, 



CIVIL RIGHTS. 255 

whose courts assume to grant it. 1 Nor can the constitu- 
tional provision, that full faith and credit shall be given 
in each State to the judicial proceedings, &c. of every 
other State, require such a divorce to be respected else- 
where, because it is not entitled to respect in the State in / 
which it takes place. 2 

Education. — That civil liberty would be exceedingly 
imperfect that did not permit the citizen to educate him- 
self in such proper ways as might be open to him, and to 
such extent as he should choose. The State, however, 
usually makes provision for public education, establishing 
schools and laying down rules respecting those who shall 
be received into them. Formerly it was held that such a 
provision was in the nature of State bounty, and that the 
State might limit the bounty at discretion. Therefore col- 
ored children might be excluded from the public schools. 3 
But since the adoption of the Fourteenth Amendment this 
is unlawful, 4 though it seems to be admissible to require 
colored persons to attend separate schools, provided the 
schools are equal in advantages, and the same measure 
of privilege and opportunity is afforded in each. 5 

Employment. — The general rule is that every person 
sui juris has a right to choose his own employment, and 
to devote his labor to any calling, or at his option to hire 
it out in the service of others. This is one of the first and 
highest of all civil rights, and any restrictions that dis- 
criminate against persons or classes are inadmissible. The 
right to reside in a country implies the right to labor there, 
and therefore if by treaty with a foreign country its people 

1 Hanover v. Turner, 14 Mass. 227 ; Leith v. Leith, 39 N. H. 20; 
People v. Dawell, 25 Mich. 247 ; Hoffman v. Hoffman, 46 N. Y. 30 ; 
Reel w. Elder, 62 Penn. St. 308. 

2 Chase v. Chase, 6 Gray (Mass.), 157. 

8 Roberts v. Boston, 5 Cash. (Mass.) 198. 

4 Ward v. Flood, 48 Cal. 36. 

6 Cory u. Carter, 48 Tnd. 327 ; State r. McCann, 21 Ohio St. 198 ; 
County Court v. Robinson, 27 Ala. 116; People v. Gallagher, 93 
N. Y. 438. 



256 CONSTITUTIONAL LAW. 

are given the liberty to reside in this, no State can have 
the right to forbid their employment, as this would be in 
conflict with the rights given by the treaty. 1 

Employments are nevertheless subject to control under 
the State power of police, and may be regulated in various 
ways, and to some extent restricted. 

1. The State may forbid certain classes of persons 
being employed in occupations which their age, sex, or 
health renders unsuitable for them ; as women and young 
children are sometimes forbidden to be employed in mines 
and certain kinds of manufacture. 

Some of the States have gone further, and passed acts 
regulating the hours of employment and other kindred 
measures. It cannot be said that there is agreement 
among the decisions of the State courts as to the consti- 
tutionality of such legislation. The Supreme Court of the 
United States has held valid a State statute limiting the 
period of daily employment in certain occupations, 2 and 
in rendering the decision has laid down what seems to be 
a sound general principle. If the legislation in question 
is a mere arbitrary interference with individual action or 
the right of private contract, or if it is evidently an unjust 
discrimination against a particular class, it doubtless is 
invalid ; but if it has for its purpose the protection of the 
health and safety of the citizens of the State, and if there 
is reasonable ground for believing that it will conduce to 
that end, then it is within the competence of the State. 

2. The State may require special training for some em- 
ployments, and forbid persons engaging in them who have 
not proved their fitness on examination, and been duly 
licensed. Such are the cases of practitioners of law and 

1 Baker v. Portland, 5 Sawy. 566 ; Chapman v. Toy Long, 4 Sawy. 
36; Soon Hing v. Crowley, 113 U. S. 703. 

2 Holden v. Hardy, 169 U. S. 366. See also Commonwealth v. 
Hamilton Mfg. Co., 120 Mass. 383 ; People v. Havnor, 149 N. Y. 195; 
Low v. Rees Printing Co., 41 Neb. 127; Ritchie v. People, 155 111. 98; 
Ex parte Jentsch, 112 Cal. 468. Compare Ex parte Kuback, 85 Cal. 
274; State v. Julow, 129 Mo. 163. 



CIVIL BIGHTS. 257 

of medicine. 1 Similar regulations cannot be extended to 
members of the clerical profession, since it is a part of 
the religious freedom of the people that they should be left 
at liberty to listen to such ministrations as they please, 
and to select their own teachers, whether learned or un- 
learned, wise or foolish. 

[ Where an employment is in the nature of a privilege, 
as is the practice of the law, it may be restricted, as suf- 
frage is, to persons of the male sex. 2 / 

3. An occupation opposed to public policy, like that of 
gaming, may be prohibited altogether. And where one is 
peculiarly liable to abuses, it may be surrounded by all 
such securities as may seem calculated to prevent them. 
The case of the sale of intoxicating drinks is an illustra- 
tion. Sometimes this is prohibited altogether, 3 because 
the evils are supposed to exceed any possible benefits ; 
and the prohibition invades no principle of constitutional 
liberty. 4 If by such laws existing brewery property is ren- 
dered valueless, or is abated as a nuisance without com- 
pensation, the owner cannot complain of a lack of due 
process of law. 5 Sometimes the business is only subjected 
to stringent regulations ; such as that the dealer shall give 
evidence of good moral character, be approved by some 
local board, give security" not to sell to minors or habitual 
drunkards, &c. Recently statutes have gone much fur- 
ther, and made dealers responsible for all injuries, direct 
and indirect, that may result from their sales, to the wife, 

1 If by such regulation one who has practised such profession for 
a time is prevented from continuing* its pursuit, he is not deprived of 
property without due process of law. Dent v. West Virginia, 129 
U. S. 114; Hawker v. New York, 170 U. S. 189. 

2 Bradwell ». Stale, 16 Wall. 130; Matter of Goodell, 39 Wis. 232 
Ex parte Spinney, 10 Nev. 323; Robinson's Case, 131 Mass. 876. 

;i Beer Company v. Massachusetts, 97 U. S. Hep. 25 ; License Tax- 
Cases, 5 Wall. 462! 

4 License Cases, 5 How. 504; Lincoln v. Smith, '27 Vt. 328 ; Rey- 
nolds r. Geary, 26 Conn. 179; Kx parte Keeler, 4."> S. C. 537. 

6 Mugler v. Kansas, 123 U. S. 673 j Kidd v. Pearson, 128 U. S. I, 

17 



258 CONSTITUTIONAL LAW. 

child, parent, or employer of the purchaser ; and it is held 
competent for the State to impose this severe responsibil- 
ity. x Some statutes even make the owners of property on 
which liquors are sold by others responsible for the result- 
ing injury.' And upon the principle that the State may 
restrain or forbid the use of whatever articles it deems 
prejudicial to the public health or morals, statutes prohib- 
iting the manufacture or sale of oleomargarine have been 
sustained in spite of the Fourteenth Amendment. 2 

Innkeepers and Common Carriers. — In general every 
person may make rules for the regulation of his own busi- 
ness, and may deal with whomsoever he pleases, and refuse 
to deal with others. Exceptional rules have grown up at 
the common law in respect to certain occupations, on 
account of their public nature. One of these is that of 
an innkeeper, whose obligation at the common law is to 
receive all who come, and entertain them impartially, pro- 
vided he has sufficient accommodations, and they come in 
an orderly and decent manner, not intoxicated or subject 
to a contagious or infectious disease. 3 A common carrier 
is under similar obligations, and has similar rights. But 
he may discriminate in the accommodation he affords, so 
long as the distinctions are not wholly unreasonable ; as 
some railroad companies do in furnishing different car- 
riages for male and female passengers ; 4 and it has been 
decided in some cases that the carrier may discriminate in 
the same way between persons of different races, provided 
the accommodations afforded to all are equal. 5 No doubt 
State legislation might lawfully forbid such discrimina- 
tions, 6 and Congress might do the same, so far as concerns 

1 Wilkerson u. Rust, 57 Ind. 172; State v. Ludington, 33 Wis. 107. 

2 Powell v. Pennsylvania, 127 U. S. 678. 

3 Howell v. Jackson, 6 C. & P. 723 ; Markham v. Brown, 8 N. H. 523. 

4 Chicago, &c. R. R. Co. v. Williams, 55 111. 185; Hutchinson on 
Carriers, § 542. 

5 Westchester, &c. R. R. Co. v. Miles, 55 Penn. St. 209 ; Green v. 
Bridgeton (U. S. Dist. Ct. Georgia), 9 Cent. Law Jour. 206 ; Plessy n. 
Ferguson, 163 U. S. 537. 

6 De Cuir v. Benson, 27 La. Ann. 1. 



CIVIL RIGHTS. 259 

the commerce that falls within its control ; s but Congress 
can have no power within the State to legislate for equal and 
impartial accommodations in public inns, theatres, &c. 2 

Where the common carrier is a railroad company, ex- 
isting and operating its road under a grant of important 
State franchises, among which is that of exercising the 
right of eminent domain for the acquisition of right of 
way, &c, and especially if by the charter the State has 
reserved the right of alteration and repeal, the State may 
extend its regulations so far as to fix the rates of trans- 
portation, and to compel submission to the constant super- 
vision of commissioners, whose duty it shall be to see 
that the laws are obeyed, and that absolute impartiality 
is observed. 3 

Regulation of Prices. — Formerly it was common by 
legislation to regulate wages, and the prices of merchan- 
dise, or whatever any one person might have to dispose of 
to another. To some extent this was done in this coun- 
try in colonial days, but never generally ; and the old laws 
on the subject were unquestionably innovations on common 
right, and usurpations of authority. I In some cases, how- 
ever, the right to regulate charges is still exercised, and 
in the following cases may be justified on principle : — 

1. Where the business is one the following of which is 
not a matter of right, but is permitted by the State as a 
privilege or franchise. Under this head may be classed 
the business of setting up lotteries, of giving shows, &c. , 
of keeping billiard tables for hire, of selling intoxicating 
drinks, and of keeping a ferry or toll bridge. 

2. When the State on public grounds renders to the 
business special assistance by taxation, or under the emi- 
nent domain, as is done in the case of railroads. 

1 See Hall v. Do Cuir, 95 U. S. 485. 

2 Civil Rights Cases, 109 IT. S. .3, in which the purpose aiul force. 
of the new amendments to the Constitution are considered, 

3 Chicago, &o. K, R. Co.y. Iowa, 94 U. S. 155; Peik v. Chicago, &c 
R. R. Co., 94 U. S. 164. See, further, eases cited Ch. XVI. sec 1, 
ttndor " Regulation of Charter Contracts." 



260 CONSTITUTIONAL LAW. 

3. When, for the accommodation of the business, special 
privileges are given in the public streets, or exceptional 
use allowed of public property or public easements, as is 
the case with hackmen, draymen, &c. 

4. When exclusive privileges are granted in considera- 
tion of some special return to the public, or in order to 
secure something to the public not otherwise attainable. 1 

To these may be added : — 

5. The case of money loans. This is an exception diffi- 
cult to defend on principle ; but the power to regulate the 
rate of interest has been employed from the earliest days, 
and has been too long acquiesced in to be questioned now. 

6. Those employments which are quasi public, or 
affected with a public interest, j It is a matter of some 
difficulty to determine with precision when an occupation 
or business is so affected with a public interest that the 
State has the recognized right to regulate prices or rates. 
If one is permitted to take upon himself public employ- 
ment with special privileges which only the State can 
grant, the right of the State to limit the prices charged 
for services is plain enough; but the courts have gone 
much further than this in recognizing the power of regu- 
lation in the State, and seem to have laid down the broad 
doctrine that where private property is devoted to a pub- 
lic use it is subject to public regulation. 2 In the leading 
case of Munn v. Illinois, 3 where the question at issue was 
the right of the legislature to limit the price charged for 
elevating and storing grain in the city of Chicago, the 
court sustained the power and placed it upon the same 
ground with the right to regulate the common carrier, the 

1 Slaughter House Cases, 16 Wall. 36; Water Works v. Schottler, 
110 U. S. 347. 

2 When the owner of property devotes it to a use in which the pub- 
lic have an interest, he in effect grants to the public an interest in such 
use, and must to the extent of that interest be controlled by the public 
for the common good. Zanesville v. Gas Light Co., 47 Ohio St. 1; 
approved in Budd v. New York, 143 U. S. 517, 543. 

3 94 U. S. 113. 



CIVIL EIGHTS. 261 

Innkeeper, the wharfinger, or those engaged in like employ- 
ments. The business in Chicago, because of local condi- 
tions, constituted a virtual monopoly, but the court has 
upheld similar legislation in other States and where the 
circumstances were different. In the case of Brass v. 
Stoeser legislation limiting the charges of elevators in 
North Dakota was held to be valid. 1 

But this power of limiting prices is not itself without 
limits. " Under pretence of regulating fares and freights, 
the State cannot require a railroad to carry persons and 
property without reward ; neither can it do that which in 
law amounts to a taking of private property for public 
use without just compensation or without due process of 
law." 2 Although it is not the province of the courts to 
enter upon the administrative task of framing a tariff of 
rates, it is their duty to grant relief against legislation 
which is so unreasonable as to destroy the value of prop- 
erty. In other words, the question of reasonableness is a 
judicial one. 3 

1 " When it is once admitted, as it is admitted here, that it is com- 
petent for the legislative power to control the business of elevating and 
storing grain, whether carried on by individuals or associations, in 
cities of one size and in some circumstances, it follows that such power 
may be legally exerted over the same business when carried on in 
smaller cities and in other circumstances." Brass v. Stoeser, 153 U. S. 
391, 403. See also Budd v. New York, 143 U. S. 517. This right of 
regulation has been upheld when applied to warehouses. Nash v. 
Page, 80 Ky. 539; Delaware, &C. R. R. Co. v. Central Stock Yard Co., 
45 N. J. Eq. 50 ; to telephone companies, Central Un. Tel. Co. v. State, 
118 Ind. 194 ; to a public (lour mill, State v. Edwards, 86 Me. 102. 

2 Waite, C. J., in Railroad Commission Cases, 116 U. S. 307,331. 

3 St. Louis, &c. By. v. Gill, 156 U. S. 649: Covington, &c. Turn- 
pike Co. v. Sandford, 104 U. S. 578; Reagan r. Fanners' Loan & Trust 
Co., 154 U. S. 362. " While rates for the transportation of persons and 
property within the limits of a State are primarily for its determina- 
tion, the question whether they are so unreasonably low as to deprive 
the carrier of its property without such compensation as the Constitu- 
tion secures, and therefore without due process of law, cannot be so 
conclusively determined by the legislature of the State or by regula- 
tions adopted under its authority that the matter may not become the 
•ubjeet of judicial inquiry." Smyth v. Ames, 1G9 U. S. 460. 



262 CONSTITUTIONAL LAW. 

Monopolies. — Every exclusive privilege is to some ex- 
tent an infringement upon equal rights, and therefore 
ought to be capable of being defended on some ground 
that under the circumstances justifies it. (But monopolies 
are undoubtedly admissible in some cases. An illustration 
is had in the case of a patent, and another in the case of 
a copyright of a book or print. ) Monopolies in all kinds 
of business were at one time common in England; but 
they were held to be illegal at length, the court declaring 
that " the sole trade of any mechanical artifice, or any 
other monopoly, is not only a damage and prejudice to 
those who exercise the same trade, but also to all other 
subjects ; for the end of all these monopolies is for the 
private gain of the patentees." 1 It is certain that they 
cannot be granted in such ordinary vocations as can be 
left open to all to the common benefit ; but they sometimes 
may be given as a matter of regulation, where the busi- 
ness is such that the public interest can be best subserved 
and protected by confiding it to one person or association 
of persons who shall manage it exclusively. For example, 
the exclusive right to supply water or gas-light in a city 
or part of a city is sometimes granted, 2 or the exclusive 
right to lay railway tracks in its streets ; and it has been 
held that a corporation may be given the exclusive right 
to slaughter cattle for the markets of a city, it being 
required to do so impartially for all who apply, and at 
reasonable rates. 8 This obligation to serve the public 
impartially would seem to be an essential incident to any 
grant of a monopoly, since without it it would be impos- 
sible to justify the grant on public grounds. 

1 Darcy v. Allain, 11 Rep. 84; Broom, Const. Law, 500. Seethe 
act of Congress to protect commerce " against unlawful restraints and 
monopolies." 26 Stat, at Large, 209 (July 2, 1890), and " anti-trust* 
legislation of the States. 

2 State v. Milwaukee Gas Co., 29 Wis. 454; New Orleans Gas Co. 
v. La. Light Co., 115 U. S. 650 ; New Orleans Water Works v. Kireis, 
Id. 674. 

* Slaughter House Cases, 16 Wall. 36. 



CIVIL EIGHTS. 263 

\ Combinations to effect monopolies are opposed to the 
public interest, and may be forbidden and punished. So 
combinations to prevent men being employed by others, 
through force or threats or any other means beyond the 
employment of reason or solicitation, are illegal, and if 
successful will be actionable at the common law. 1 

/Sumptuary Laws. — Montesquieu thought sumptuary 
laws essential to prevent extravagance in a republic, 2 but 
the notion has long been exploded. They are plain inva- 
sions of individual liberty, and therefore are forbidden. 
Every person must be allowed to judge of his own table, 
and to dress as he pleases, subject to such police regula 
tions as may be established for the preservation of public 
order and public morals. Women, for example, may be 
forbidden to go about in the ordinary garb of men, as a 
necessary regulation against immorality and indecency. 
So every person must be allowed to deal with his prop- 
erty as he pleases, subject to reasonable regulations for 
the protection of others. He cannot, for example, be 
compelled against his will to improve his real estate. 3 

( Suffrage. — Participation in the suffrage is not of right, 
but it is granted by the State on a consideration of what 
is most for the interest of the State. Nevertheless, the 
grant makes it a legal right until it is recalled, and it is 
protected by the law as property is. In the following 
chapter the conditions of suffrage and of the holding of 
office will be noticed. 

Section V. — Jury Trial in Civil Cases. 

I The Constitution. — The seventh amendment provides 
that " in suits at common law, where the value in contro- 
vtrsy shall exceed twenty dollars, the right of trial by 

i Oarew y. Rutherford, 100 Mass. 1 ; Old Horn. S. 8. Co. v 
McKenna, 30 Fed. Rep. 48. See Hornby v. Close, L. K. 2 Q. B. 153. 

•' Spirit of the Laws, b. 7. 

:( (lames v. Buford, 1 Dana (Ky.), 479 ; Violett V. Violott. 2 Dana 
. ffy.), 323. 



264 CONSTITUTIONAL LAW. 

jury shall be preserved ; and no fact tried by a jury shall 
be otherwise re-examined in any court of the United 
States than according to the rules of the common law." 
The right of persons accused of crimes to be tried by jury 
is secured by another provision, and will be examined in 
another place. 

"The trial by jury," it has been said, "is justly dear 
to the American people. It has always been an object of 
deep interest and solicitude, and every encroachment upon 
it has been watched with great jealousy." * The privilege 
in criminal cases has been looked upon as a necessary 
part of the liberties of the people, and a sentiment at- 
taches to it which will scarcely suffer its value to be ques- 
tioned. Every State constitution preserves it for suits in 
the State courts, and every new or revised constitution 
repeats a guaranty of it. Even the common law require- 
ment of unanimity in the verdict, which is of more than 
doubtful value, is retained without inquiry or question, 
because it has existed from time immemorial. 

The tribunal was almost peculiar to the common law 
courts, and issues joined in other courts went to a jury 
only under peculiar circumstances and in exceptional 
cases. It is important to know, however, that the form 
of the proceeding will not determine the right of the party 
to this method of trial. By the common law in this 
amendment " is meant what the Constitution denominated 
in the third article ' law ' ; not merely suits which the com- 
mon law recognized among its old and settled proceedings, 
but suits in which legal rights were to be ascertained and 
determined, in contradistinction to those where equitable 
rights alone were recognized and equitable remedies were 
administered; or where, as in the admiralty, a mixture of 
public law and of maritime law and equity was often 
found in the same suit." 2 It is immaterial, therefore, 
what changes may be made in the forms of action or 
pleadings, since the nature of the controversy and the 

i Parsons v. Bedford, 3 Pet. 433, 446. 2 Ibid., 447. 



CIVIL BIGHTS. 265 

right in dispute must determine the privilege, and not the 
form of remedy provided. 1 But as the amendment only 
preserves the right, and does not extend it, the privilege 
is demandable of right only in those cases in which the 
law gave it before. 2 

Waiver. — Jn criminal cases — at least in cases of felony 
— the accused cannot waive this privilege, the jury being 
a necessary part of the tribunal that tries him ; 3 nor can 
it be made to depend on any condition, as, for example, 
upon an appeal from a court that sits without a jury to a 
court which allows one. 4 But civil rights in general may 
be waived, and a provision for civil cases that trial by 
jury should be deemed waived unless demanded would 
seem unobjectionable. It has been held, also, that it suf- 
ficiently preserves the privilege to make provision by law 
for jury trial in an appellate court. 5 

Incidents. — The peculiar characteristic of jury trial is 
this : that the jury sit with the judge to try the facts of 
the controversy, receiving from him the law, and applying 
it, according as they find the facts to be, in a verdict which 
embodies both fact and law in a general conclusion. Or, 
at their option, the jury may find the facts specially, and 
report them to the court, who will then determine what 
judgment the facts require. The court is thus the trier of 
the law, and the jury are the triers of the facts ; but the 
judge may nevertheless rightfully express his opinion upon 
the facts to the jury, who will be at liberty to accept his 

i Backus v. Lebanon, 11 N. H. 9 ; Tabor v. Cook, 15 Mich. 322 ; 
Mississippi Mills v. Colin, 150 II. S. 202. 

2 Rhine* v. Clark, 51 Penn. St. 96. As the government has the 
right to prescribe conditions attending the importation of goods, an 
importer has no right to have the dutiable value of imports determined 
by a jury. Auffmordt v. Hedden, 137 U. S. 810. 
' 8 Cancemi v. People, 18 N. V. 128. See cases post, Ch. XV. Bee. 6, 
Cooley, Const. Lim., 6th ed., 890, 391. 

4 Matter of Dana, 7 Benedict, 1 : Callan v. Wilson, 127 U. 8. 640. 

6 Many cases are collected in Cooley, Const. Lim., Gth ed., 506, 
note. Compare Groeu v. Briggs, 1 Curt. C. C. 311. 



Z66 CONSTITUTIONAL LAW. 

conclusions, or to disregard them, as their judgment shall 

dictate. 1 The jury have also the legal power to disregard 

the instructions in matter of law, and to render a verdict 

which the instructions would not warrant ; but their doing 

so would be misconduct, which the judge should correct by 

granting a new trial. 2 But the judge will not grant a new 

trial merely because his opinion upon disputed or uncertain 

c acts differs from that of the jury ; 3 though, if there were 

o evidence fairly tending to support their verdict, it will 

>e erroneous not in point of fact merely, but in law, and 

t will be the duty of the judge to set it aside, and, if he 

shall refuse to do so, then for a court of error to reverse 

it on that ground. 4 

Behearings. — The rule that the facts shall not be other- 
wise re-examined than according to the rules of the com- 
mon law, is essential to a preservation of the right. It 
could be of no importance that one should have a jury 
trial in the first instance, if his adversary might then re- 
move the case to another court to be tried by the judge 
himself. The finding of the jury upon the facts when no 
error has intervened to influence it, and no fraud or sur- 
prise, must be taken as conclusive. 1 When it becomes 
necessary to re-examine the facts tried by a jury, it must 
be done by another jury on a new trial. An appellate 
court examines the facts only so far as may be necessary 
to ascertain whether any error of law has been committed 
to the prejudice of the party complaining of the verdict ; 5 
but the trial court may, in its discretion, grant a new trial 
where for any reason it is believed justice was not done by 
the first verdict, j 

The Seventh Amendment applies not only to cases 

1 Vicksburg, &c. E. R. Co. v. Putnam, 118 U. S. 545 ; United States 
v. Reading R. R., 123 U. S. 113. This is true also in criminal cases in 
Federal courts. Simmons v. United States, 142 U. S. 148. 

2 Wilkinson v. Greelv, 1 Curt. C. C. 63. 

8 Stanley v. Whipple, 2 McLean, 35 ; Carr v. Gale, 3 Wood. & M. 3a 
4 Insurance Co. v. Rodel, 95 U. S. 232. 
* Hickman v. Jones, 9 Wall. 197. 



CIVIL RIGHTS. 267 

tried by jury in the Federal courts, but also to such as are 
tried by jury in the State courts and afterwards removed 
to the Federal Supreme Court for review under its appel- 
late jurisdiction. 1 

1 The Justices v. Murray, 9 Wall. 274; Chicago, B., & Q. R. R. Ca 
v. Chicago, 166 U. S. 226, 



* 



268 CONSTITUTIONAL LAW. 



CHAPTER XIV. 

POLITICAL PRIVILEGES AND THEIR PROTECTIONS. 

(Political Privileges in General. — In the main, political 
privileges arise under state constitutions and laws, and 
are left to their protection. The few exceptions will be 
specified in the pages which follow. J 

Section I. — Citizenship. 

The Fourteenth Amendment. — The fourteenth article 
of the amendments declares that I" all persons born and 
naturalized in the United States, and subject to the juris- 
diction thereof, are citizens of .the United States and of 
the State wherein the}' reside." ) The importance of this 
provision connects itself with the earnest and violent con- 
troversy which for more than ten years previous to its 
adoption had agitated the country respecting the status of 
colored persons. Such persons, when not enslaved, had 
been considered citizens in one section of the Union ; and 
whether the}' were or were not citizens in the other States 
had been the subject of veiy little discussion or considera- 
tion previous to the disturbing and exciting events of 
which the repeal of the restriction upon the extension of 
slaver} r , imposed b} r the legislation known as the Missouri 
Compromise, was most important. In the case in which 
the federal Supreme Court expressed the opinion that 
that restriction was unconstitutional, it was decided that 
a colored person of the African race, whose ancestors were 
imported into this countiy and sold as slaves, could not 
become a member of the political community brought into 
existence by the Constitution of the United States, and 



POLITICAL PRIVILEGES. 269 

as such entitled to the rights, privileges, and immunities 
guaranteed by that instrument to citizens, and that he 
could not, therefore, as a citizen, bring suits in the courts 
of the United States. 1 To this extent the opinion of the 
court was authoritative, and was entitled to respect and 
observance as such so long as it stood unreversed. A very 
large part} 7 in the country, however, was not satisfied with 
the reasoning of the court, but protested against it ; and 
when the government of the country, by the election of 
1860, passed into the hands of this party, the decision was 
wholly ignored by the political departments of the govern- 
ment. It may perhaps be said that it was ignored by the 
judicial department also, since persons of African descent 
were admitted to practice in the federal courts on the same 
terms with others. 2 But a mere tacit recognition of rights 
which are still disputed cannot be the most satisfactory 
settlement of a question so important. A ruling of the 
executive department under one administration may be 
set aside under the next. Even an act of Congress might 
be repealed when another party succeeded to power ; or it 
might be adjudged unconstitutional by the courts, as had 
been done with the Missouri Compromise. But as the 
solemn adjudication already had was still standing unre- 
versed, it obviously constituted a most serious and dan- 
gerous impediment to the peaceful and full enjoj'ment of 
rights which it denied. Under these circumstances the 
propriety and importance of having the controversy set- 
tled in the most authoritative and conclusive mode are 
apparent. 

/ How Citizenship is acquired. — The fourteenth amend- 
ment indicates the two methods in which one ma}' become 
a citizen : first, by birth in the United States ; 3 and, second, 

1 Scott v. Sanford, 10 How. 393. 

2 This was without objection or discussion. 

3 This wouhl include, also, birth abroad of children of American 
citizens temporarily residing or travelling in other countries. Kor. 
Stat. U. S., § 1903. 



270 CONSTITUTIONAL LAW. 

by naturalization therein. But a citizen by birth must not 
only be born within the United States, but he must also 
be subject to the jurisdiction thereof • and by this is meant 
that full and complete jurisdiction to which citfzens gener- 
ally are subject, and not any qualified and partial jurisdic- 
tion, such as may consist with allegiance to some other 
government. V The amendment, therefore, affirms the citi- 
zenship of children born within the United States of all 
persons, of whatever race or color ; but it does not affirm 
the citizenship "of children of foreign sovereigns or their 
ministers, or born on foreign public ships, or of enemies 
within and during a hostile occupation of part of our 
territory." 1 ) 

The aboriginal inhabitants of the country may be said 
to be in an anomalous condition, so long as they preserve 
their tribal relations and recognize the headship of their 
chiefs, even when they reside within a State or an organ- 
ized Territory, and owe a qualified allegiance to the gov- 
ernment of the United States. It would obviously be in- 
consistent with the semi-independent character of such a 
tribe, and with the obedience yielded by them to their 
tribal head, that they should be vested with the complete 
rights, or, on the other hand, charged with the full respon- 
sibilities of citizens. 2 Congress has provided that sepa- 
rate allotments of land may be made to Indians, and 
that any Indian born within the territorial limits of the 
United States, to whom an allotment has been made, 
or who has voluntarily taken up his residence separate 
from any tribe and has adopted the habits of civilized 
life, is a citizen of the United States. 3 

Naturalization. — Naturalization may be effected, firsts 

1 United States v. Wong Kim Ark, 169 U. S. 649, 693. 

2 Goodell v. Jackson, 20 Johns. (N. Y.) 693, 710; McKay v. Camp- 
bell, 2 Sawy. 118 ; Ex parte Reynolds, 5 Dill. 394. 

3 Act of 1887, 24 Stat, at Large, 388 ; Sup. Rev. Stat., i. 534. Com- 
pare Elk v. Wilkins, 112 U. S. 94, decided before this act was passed; 
and see State v. Frazier, 28 Neb. 438. 



POLITICAL PRIVILEGES. 271 

by special laws which confer the privilege upon indi. iuuals 
named ; second, by proceedings under general laws, where- 
by individuals severally renounce any foreign allegiance, 
and take upon themselves the obligations of citizenship ; 
third, by the acquisition by the United States of foreign 
territory, with its people, who thereby become citizens of 
the United States ; fourth, by the general terms of an act 
of Congress providing for the admission of a Territory as 
a State. 1 In the third manner, the people brought within 
the jurisdiction of the Union by the acquisition of Lou- 
isiana, Florida, and portions of Mexico became citizens. 
The second method above named is that provided by 
acts of Congress ; and the first and third must always 
be exceptional. J 

Loss of Citizenship. — It is declared by act of Con- 
gress that " expatriation is a natural and inherent right of 
all people, indispensable to the enjoyment of the rights of 
life, liberty, and the pursuit of happiness," and that " any 
declaration, instruction, opinion, order, or decision of any 
officer of the United States, which denies, restricts, im- 
pairs, or questions the right of expatriation, is inconsist- 
ent with the fundamental principles of the republic." 2 
The judicial doctrine had previously been, that no one 
could expatriate himself without express authority of law. 3 
It is also provided by act of Congress, that desertion from 
military or naval service, and going abroad to avoid being 
lawfully drafted into the same, shall be deemed a volun- 
tary relinquishment and forfeiture of the rights of citizen- 
ship. 4 

1 There may be in the Territory and participating in the political 
activities persons who are not fully qualified citizens of the United 
States; and admission into the Union " involves the adoption as citizens 
of the United States of those whom Congress makes members of the 
political community." Boyd y. Thayer, 143 U. S. 135. See also 
Desbois's Case, 2 Martin, IS"). 

a Rev. Stat. U. S., § 1999. 

8 2 Kent, 48-50, and notes. 

* Rev. Stat. U. S., §§ 1996-1998. 



272 CONSTITUTIONAL LAW. 

Citizenship in State and Union. — The Fourteenth 
Amendment recognizes the fact that there is a citizenship 
of the United States, and also a citizenship of the several 
States, and that the two coexist in the same persons. 
Botii.gQ.yernments owe a duty of protection to the persons 
who are subject to their jurisdiction, and both are entitled 
to the allegiance of such persons, and may punish breaches 
of this allegiance. It is impossible to conceive of such a 
status as citizenship of a State unconnected with citizen- 
ship of the United States, or of citizenship of the United 
States within a State unconnected with citizenship of the 
State. I The States cannot naturalize, though they may 
confer special privileges upon aliens ; and the act of natu- 
ralization by the United States is the grant of citizenship 
within the State where the naturalized person resides. It 
is only in the Territories and other places subject to their 
exclusive jurisdiction that there can be a citizenship of 
the United States unconnected with citizenship of a 
State. 1 I 

Abridgment of Privileges and Immunities. — In a pre- 
vious chapter, the section of the Constitution which en- 
titles the citizens of each State to all the privileges and 
immunities of citizens of the several States has been ex- 
amined, and some attempt made to describe those privi- 
leges and immunities. 2 By the Fourteenth Amendment it 
is declared that " no State shall make or enforce any law 
which shall abridge the privileges or immunities of citizens 
of the United States." The line of distinction between the 
privileges and immunities of citizens of the United States 
and those of citizens of the several States must be traced 
along the boundary of their respective spheres of action, 
and the two classes must be as different in their nature as 

1 Prentiss v. Brennari, 2 Blatcli. 162. The inhabitants of districts 
within a State over which the State has ceded exclusive jurisdiction to 
the United States are not citizens of the State. Sinks v. Reese, 19 Ohio 
St. 306 ; Commonwealth v. Clary, 8 Mass. 72. 

2 See p. 206. 



POLITICAL PEIVTLEGES. 273 

are the functions of their respective governments. A citi- 
zen of the United States as such has a right to participate 
in foreign and interstate commerce, to have the benefit 
of the postal laws, to make use in common with others of 
the navigable waters of the United States, and to pass 
from State to State and into foreign countries, because 
over all these subjects the jurisdiction of the United States 
extends, and they are covered by its laws. 1 These, there- 
fore, are among the privileges of citizens of the United 
States. So every citizen may petition the Federal au- 
thorities which are set over him in respect to any matter 
of public concern ; may examine the public records of the 
Federal jurisdiction ; may visit the seat of government 
without being subjected to the payment of a tax for the 
privilege ; 2 may be purchaser of the public lands on the 
same terms with others ; may participate in the govern- 
ment if he comes within the conditions of suffrage ; and 
may demand the care and protection of the United States 
when on the high seas, or within the jurisdiction of a for- 
eign government. 3 The privileges suggest the immunities. 
Wherever it is the duty of the United States to give pro- 
tection to a citizen against any harm, inconvenience, or 
deprivation, the citizen is entitled to an immunity which 
pertains to Federal citizenship. 

f One very plain and unquestionable immunity is exemp- 
tion from any tax, burden, or imposition under State laws, 
as a condition to the enjoyment of any right or privilege 
under the laws of the United States. A State there fore 
cannot require one to pay a tax as importer, under the 
laws of Congress, of foreign merchandise, 4 nor impose a 
tax upon travellers passing by public conveyances out of 
the State, 5 nor impose conditions to the right of citizens 

1 Story on Const., 4th ed., § 1987. 

2 Crandall v. Nevada, 6 Wall. 35. 

» Slaughter Route Gases, 16 Wall. 36, 
« Ward r. Maryland. 12 Wall. 163. 
* Crandall v, Nevada, 6 Wall 35. 
18 



274 CONSTITUTIONAL LAW. 

of other States to sue its citizens in the Federal courts. 1 / 
These instances sufficiently indicate the general rule. 
Whatever one may claim as of right under the Constitu- 
tion and laws of the United States, by virtue of his citi- 
zenship, is a privilege of a citizen of the United States. 
Whatever the Constitution and laws of the United States 
entitle him to exemption from, he may claim an immunity 
in respect to. 2 And such a right or privilege is abridged 
whenever the State law interferes with any legitimate 
operation of Federal authority which concerns his interest, 
whether it be an authority actively exerted, or resting 
only in the express or implied command or assurance of 
the Federal Constitution or laws. But the United States 
can neither grant nor secure to its citizens rights or privi- 
leges which are not expressly or by reasonable implication 
placed under its jurisdiction; and all not so placed are 
left to the exclusive protection of the States. 3 

Necessity of the Provision. — It may well be questioned 
whether the provision just considered was necessary. It 
is certainly not clear that there can exist any privilege or 
immunity of a citizen of the United States which, inde- 
pendent of the Fourteenth Amendment, is not beyond 
State control. The mere fact that the Constitution and 
laws of the United States have created a privilege, or 
given an immunity, is of itself sufficient to put it beyond 
the reach of unfriendly legislation. The reason is ob- 
vious. State laws operate, and can only operate, within 
the sphere of State sovereignty ; but privileges and im- 

1 Insurance Co. v. Morse, 20 Wall. 445. 

2 Slaughter House Cases, 16 Wall. 36. 

3 United States v. Reese, 92 U. S. 214 ; United States v. Cruik- 
shanks, 92 U. S. 542 ; Hall v. De Cuir, 95 U. S. 485 ; Kirtland v. Hotch- 
kiss, 100 U. S. 491 ; Presser v. Illinois, 116 U. S. 252. It may be noted 
that this rule, now well settled, was laid down by a bare majority of 
the court in the Slaughter House Cases, supra, where four of the judges 
thought that the Fourteenth Amendment, properly construed, changed 
the whole relation of the State and Federal governments as to the pro- 
tection of the civil rights of the citizen. 



POLITICAL PRIVILEGES. 275 

munities of citizens of the United States arise within the 
sphere of national sovereignty, where in express terms 
the Constitution and laws of the United States are made 
paramount and supreme. 1 It is plain that State laws 
cannot impair what they cannot reach. The right, for 
example, of every citizen to have the benefit of postal 
facilities, was as little open to question before the amend- 
ment as it is now. -The law must have been then as it is- 
now, — namely, that State law is powerless to take away, 
restrain, or abridge that which the Federal authority has 
lawfully given. >And it is immaterial whether the privi- 
lege or immunity exists as an implication under some 
provision of the Constitution or laws, or is expressly de- 
clared and established. The right to visit the national 
capital is nowhere expressly declared, but it results from 
the very nature of free government ; ' 2 and for a State to 
undertake to deny or obstruct the right would as plainly 
be an intrusion on Federal sovereignty as would an at- 
tempt to encroach on the war power, or the power over 
foreign commerce. Nevertheless this portion of the Four- 
teenth Amendment has its importance in the fact that it 
embodies in express law what before, to some extent, 
rested in implication merely ; just as in the Constitution 
bills of attainder are forbidden, though without the pro- 
hibition they would undoubtedly be incompetent, because 
of the separation of legislative and judicial authority 
which has been made by the American constitutions. 
Many abuses of power are forbidden more than once 
in the Federal Constitution, under different forms of 
expression. 

Section II. — Suffrage and Elections. 

Basis of Suffrage. — During the years succeeding the 
civil war, while the agitation for an enlargement of civil 

1 Const., Art. VI. cl. 2; Ableman v, Booth, 21 How. 506 
« Craudall v. Nevada, Wall. 35. 



/ £~+ : 



276 CONSTITUTIONAL LAW. 

rights was violent, sentiment had a great and extraor* 
dinary influence on public affairs in America. It affected 
the discussion of political privileges, and considerable 
numbers insisted that suffrage was a natural right, cor- 
responding to the right to life and liberty, and equally 
unlimited. Unless such a doctrine is susceptible of being 
given practical effect, it must be utterly without substance ; 
and so the courts have pronounced it. 1 In another place 
it has been shown that liberty itself must come from law, 
and not in any institutional sense from nature ; 2 and still 
less can that come from nature in which all the people 
cannot possibly participate, and in respect to which, there- 
fore, positive law becomes absolutely essential in order to 
prescribe qualifications, the possession of which shall be 
the test of right to enjoyment. A gift by nature must be 
absolute, and not contingent upon the State coming for- 
ward afterwards with uncertain and changeable enact- 
ments to name conditions, and point out the persons who 
may enjoy the bounty. But there is a further objection 
which is equally insurmountable : suffrage cannot be the 
natural right of the individual, because it does not exist 
for the benefit of the individual, but for the benefit of the 
State itself. 

{ Suffrage is participation in the government : in a repre- 
sentative country it is taking part in the choice of officers, 
or in the decision of public questions. / The purpose is to 
keep up the continuity of government, and to preserve 
and perpetuate public order and the protection of indi- 
vidual rights. The purpose is therefore public and gen- 
eral, not private and individual. Whatever suffrage is 
calculated to defeat the general purpose, — whatever, if 
permitted, would tend to break up the government, to in- 
troduce anarchy, and to bring upon the people the innu- 
merable mischiefs which would follow from the destruction 

1 Spencer v. Board of Registration, 1 MacArthur (D. C), 169/ 
United States v. Anthony, 11 Blatch. 200. 

2 Ante, pp. 246, 247. 



POLITICAL PRIVILEGES. 277 

of public order, — is not only inadmissible on reason, but 
is proved by the consequences which follow to be con- 
demned by the great Author of government. To say that 
one whose participation in government would bring dan- 
ger to the State, and probable disaster, has nevertheless 
a right to participate, is not only folly in itself, but it is 
to set the individual above the State, and above all the 
manifold interests which are represented by it and bound 
up in its destiny. Such a doctrine is idle. Suffrage must 
come to the individual, not as a right, but as a regulation 
which the State establishes as a means of perpetuating its 
own existence, and of insuring to the people the blessings 
it was intended to secure. 1 

\ Suffrage a State Privilege}. — The Constitution of the 
United States, except in particulars specified further on 
in this chapter, does not in any manner intermeddle with 
State and municipal elections, and they are consequently 
in most respects left exclusively to State regulation and 
control. States establish for their own people the rules 
of suffrage, and it is in State constitutions and laws, and 
in the decisions of State courts, that the rules and princi- 
ples are to be looked for which govern such elections. 
Suffrage is never a necessary accompaniment of State 
citizenship, and the great majority of citizens are always 
excluded, and are represented by others at the polls. 
Sometimes, also, suffrage is given to those who are not 
citizens ; as has been done by a number of the States, in 
admitting persons to vote who, being aliens, have merely 
declared their intention to become citizens. 

Congressional Elections. — •Under the Constitution each 
State elects such number of representatives as is appor- 
tioned to it by the laws of Congress, and the qualifications 
of electors for such representatives are to be the same as 
those for the most numerous branch of the State legisla- 
ture. 2 The State is therefore left to fix these qualitiea 

1 See Cougar y. Timborlsike, 37 N. E. Hep. 044 (Iud.). 
3 Const., Art. I. § 2. 



278 CONSTITUTIONAL LAW. 

tions without any restraint or limitation, except that which 
is imposed by the Fifteenth Amendment. The legislature 
of each State also prescribes the times, places, and man- 
ner of holding elections for senators and representatives 
in Congress ; but Congress is also empowered to make or 
alter such regulations, except as to the places of choosing 
senators. 1 When the Constitution of the State and the 
legislation of Congress conflict respecting the times and 
places when and where votes may be cast for the elec- 
tion of representatives in Congress, the legislation, under 
the provision of the Constitution last referred to, must 
control. 2 v And Congress may either make entirely new 
regulations, or add to, alter, or modify the regulations 
made by the State, 3 and may also make such provisions 
as are necessary to secure the fair and honest conduct of 
an election at which a member of Congress is elected, 
as well as the preservation, proper return, and counting 
of votes, — in short, whatever is necessary to an honest 
certification of such election. 4 The fact that State officers 
are elected at the same time does not deprive such Federal 
legislation of its effect. 5 But on the other hand Congress 
has no general authority to regulate purely State elections, 
or to punish for illegal voting at such times. 6 And the 
State may punish illegal voting for Presidential electors, 
as they are not Federal officers. 7 

Qualifications of Electors. — As elections are the means 
whereby the people express their sovereign will, the quali- 

1 Const., Art. I. § 4. 

2 Baldwin v. Trowbridge, 2 Bartlett, 46. 

3 Ex parte Siebold, 100 U. S. 371. 

* In re Cot, 127 U. S. 731 ; Ex parte Yarbrough, 110 U. S. 651 ; 
Connors v. United States, 158 U. S. 408. 

5 Ibid. 

6 United States v. Reese, 92 U. S. 214; Blitz v. United States, 153 
U. S. 308, 314. Concerning the power of Congress under the Fifteenth 
Amendment see post, pp. 290-294. Perjury in giving testimony in the 
case of a contested Congressional election is not an offence against k 
State law. In re Loney, 134 U. S. 372. 

7 In re Green, 134 U. S. 377, 



POLITICAL PRIVILEGES. 279 

fications for taking part therein are usually prescribed by 
constitution, that they may not be subject to continual 
changes from year to year by legislators of differing views. 
I When the qualifications* are once fixed by the constitution, 
it is not in the power of the legislature to add to or modify 
them, but they -must remain until the constitution is re- 
vised or amended, 1 and whoever claims the right must 
show that he comes within the intent of the existing law. 2 i 
A provision giving the right generally to persons possess- 
ing certain qualifications must be understood as excluding 
idiots and insane persons, even though not expressly 
mentioning them as exceptions, since these persons are 
incapable of exercising legal volition. 3 

It is competent to provide by law for a forfeiture of the 
right to participate in elections, as a punishment for con- 
duct which the law forbids ; but such punishment can 
only be imposed after trial and conviction. The election 
judges cannot be authorized for supposed guilt to inflict 
the forfeiture. 4 

Regulations of the Franchise. — Even where qualifica- 
tions are fixed by the constitution, it is competent for the 
legislature to prescribe by law such conditions to the 
exercise of the elective franchise as shall seem reasonable 
to protect the privilege, and to prevent impositions and 
other frauds ; and also to prescribe all proper regulations 
for receiving and canvassing the votes. One very proper 

1 State v. Williams, 5 Wis. 308; Monroe v. Collins, 17 Ohio St. 
655; Rison v. Parr, 24 Ark. 161 ; Randolph v. Good, 3 W. Va. 551 ; 
St. Joseph, &c. R. R. Co. v. Buchanan Co. Court, 39 Mo. 4S5 ; Green 
v. Shumway, 39 N. Y. 418; State v. Baker, 38 Wis. 71 ; Qninn v. 
State, 35 Ind. 485 ; People v. Canaday, 73 N. C. 198; Brown v. dro- 
ver, 6 Bnsh (Ky.), I ; Davies v. MeKeeby, 5 Nev. 369 ; McCafferty v. 
Guyer, 57 Penn. St. 109. 

a Minor y. Bappersett, 21 Wall. 162. 

8 Gushing, Legislative Assemblies, §§ 24, 27; Cooley, Const. Lim., 
6th ed., 753; McCrary, Am. Law of Elections, §§ 4, 50, 7;>. 

4 Huberw. Reilly, 53 Penn. St. 112; State y. Symonds, 57 Me. 148; 
Bnrkett y. McCarty, 10 Bush (Ky.), 758. Compare Delano ». Bartlett, 
2Bartlett, 1C>8. 



280 CONSTITUTIONAL LAW. 

condition is, that every voter, previous to the day of 
election, shall cause his name to be entered on a registry 
of voters, which is provided for as a guide to the judges 
of election in receiving the votes, and that no ballots 
shall be received from those not registered. The power 
of the legislature to require such a registry is settled, 1 and 
the voter has no cause for complaint if he fails to register. 
If a board of registration neglects or refuses to perform 
its duty as required by law, the members may be com- 
pelled to do so by mandamus, or they may be punished 
as public offenders ; but their misconduct cannot entitle 
unregistered electors to vote unless by law provision is 
made for such cases. 2 If inspectors of election, where 
they have power to determine the voter's qualification, 
reject a vote, they may be liable civilly 3 as well as crim- 
inally. But, if the statute provides that they shall re- 
ceive the vote, if the voter swears to his qualifications, 
they can exercise no judgment in the matter but must 
receive the vote. 4 

Secrecy in Voting. — Election by ballot is now prac- 
tically universal in this country, and representatives in 
Congress are required to be chosen by that method.- 5 The 
ballot is provided because it is believed most effectually 
to protect the elector against improper influences, as it 
enables him to exercise the right without any person, even 

1 Hyde v. Brush, 34 Conn. 454; Cusick's Appeal, 136 Penn. St. 
459; McCrary, Am. Law of Elections, §§ 7-10; Cooley, Const. Lim., 
6th ed., 757. But the provisions as to registration must be reasonable. 
Laws allowing but a short time within which to register or closing the 
lists some days before election have been held unreasonable. Daggett 
v. Hudson, 43 Ohio St. 548 ; State v. Corner, 22 Neb. 265 ; Owensboro 
v. Hickman, 90 Ky. 629 ; Morris v. Powell, 125 Ind. 281 ; Atty. Gen. v. 
Detroit, 78 Mich. 545. In People v. Hoffman, 116 111. 587, a law clos- 
ing registration three weeks before election was held good. 

2 People v. Kopplekom. 16 Mich. 342; Zeiler v. Chapman, 54 Mo 
502 ; Nefzger v. Railroad Co., 36 Iowa, 642. 

3 Ante, p. 174. 

4 Spragins v. Houghton, 3 VI 377 ; People v. Bell, 119 N. Y". l?$. 
& Rev. "'Stat. U. S., § 27. 



POLITICAL PRIVILEGES. 281 

the officers of election, having a knowledge for whom his 
suffrage is given. To fully protect the constitutional 
right to secrecy as against the importunities, browbeat- 
ings, or inquisitive intermeddling of others, it is provided 
by law in some States that the ballots shall be written or 
printed on white paper without any marks or figures 
thereon to distinguish one ballot from another ; and where 
such a regulation exists, all ballots not in conformity with 
it when cast are to be rejected, and all contrivances of 
political managers or election officials to evade it are 
illegal. 1 

( Notice of Elections. — Notices of the times and places 
when and where elections are appointed to be held are 
generally required to be given by some public officer, in 
some method designated by law. If the election to be 
held is exceptional or special, the failure to give this notice 
must be fatal, even should there be a general attendance 
of electors, since every one has the same right to partici- 
pate with all others. But if the election is one which is 
provided for by public law, and the law itself gives all the 
particulars of time and place, the failure to give the notice 
will not defeat the election, since every one is supposed to 
take notice of what is in the law. 2 

.Ballots, Sufficiency of. — In elections by ballot, the 
voter must take care that his ballot shall be complete in 

1 Williams v. Stein, 38 Ind. 89 ; Opinions of Judges, 45 Mc. 602; 
Brisbin v. Cleary, 26 Minn. 107. See cases in Cooley, Const. Lim., 
6th ed., 761. The recent State laws, based on the Australian system 
of voting, which provide for the furnishing by the State of an official 
ballot which shall alone be used, and for the seclusion of the voter 
while ho marks or otherwise prepares this ballot for deposit in the box. 
are valid. Common Council v. Hush, 82 Mich. 532 ; Talcott r. Phil- 
brick, 59 Conn. 472; Cole v. Tucker, 164 Mass. 486. Compare Mover 
v. Van de Vanter, 12 Wash. 377. A full discussion of some typical 
provisions of sucb laws in State v. Walsh, 62 Conn. 260 ; Parvin r. 
Weinberg, 130 Ind. 561. 

2 People y.Cowles, 13 N.Y.850; People v. Bartwell, 12 Mich. 508; 
State v. Orvis, 20 Wis. 2:55 ; People r. P>renahin, 3 Cal. 477. Compare 
Foiter v. Scarff, 15 Ohio St. 532. 



282 CONSTiTOTIOHAL LAW. 

itself, so that it shall express his intention without resort 
to extraneous evidence for explanation of apparent am- 
biguities. The general rules of law do not permit a writ- 
ten instrument to be varied or added to by parol ; and in 
case of ballots, the parol evidence would be specially ob- 
jectionable and dangerous, since public interests of the 
highest importance depend upon the elections, and the 
inducements to corruption and perjury would sometimes 
be enormous. Therefore, if one places upon his ballot 
two names for one office when only one is to be voted for, 
the ballot so far as concerns that office must be rejected 
for ambiguity, from the obvious impossibility of determin- 
ing the voter's intention without resorting to parol expla- 
nation. 1 So, if the voter puts one name upon his ballot 
where he intends to put another, he will not be allowed to 
explain the mistake, but it must be counted as he wrote 
and deposited it. 2 But the fact that a name is abbreviated 
should not prevent its being counted where the intent is 
clear. 3 Neither should the fact that the office is not de- 
scribed with precise accuracy, if the description is such 
that no doubt concerning it can exist. 4 And in any case 
where a doubt in applying a ballot perfect in itself is raised 
upon extraneous facts, it may be removed by showing all 
such facts surrounding the canvass and election as would 
tend to throw light upon it. For example, if two persons 
of the same name reside within a certain election district, 
and ballots are cast having that name upon them for a 
specific office, it may be shown, in order to enable the 

1 People v. Seaman, 5 Demo (N. Y.), 409. Compare People v. 
Saxton, 22 N. Y. 309. 

2 Hart y. Evans, 8 Penn. St. 13 ; Fenton v. Scott, 17 Oreg. 189. 

3 People v. Ferguson, 8 Cow. (N. Y.) 102 ; Attorney General v. Ely, 
4 Wis. 429 ; State v. Gates, 43 Conn. 533 ; Talkington v. Lurner, 71 
111. 234. In Wimmer v. Eaton, 72 Iowa, 374, ballots for " F. W." were 
counted for "E. W." who was a candidate, there being no one eligible 
named "F. W." who was running. Compare People v. Cicotte, 16 
Mich. 283 ; Kreitz v. Behrensmeyer, 125 111. 141. 

* People v. Matteson, 17 HI. 167; People v. McManus,34 Barb. 620. 



POLITICAL PRIVILEGES. 283 

ballots to be applied, that one of these persons was pub- 
licly known and understood to be a candidate for the 
office specified, and the other was not. 1 

Irregularities in Elections, — All the rules of law gov- 
erning elections should aim at obtaining the full and free 
expression of the views of those entitled to vote ; and 
whenever there is reasonable ground for believing that 
this has been had, a ballot should not be set aside be- 
cause of mere irregularities. The following are illustra- 
tions. The erroneous rejection by the judges of election 
of the ballot offered by a qualified voter; 2 the accidental 
substitution of another book for the Bible in the adminis- 
tration of an oath ; the holding of the election by persons 
who were not officers de jure, but were officers de facto, 
and acted as such in good faith ; the neglect of the judges 
to appoint clerks of the election ; the closing at sundown 
of the outer door of the room in which the election was 
held, and then permitting the electors within the room to 
vote, it not appearing that illegal votes were received 
or legal excluded ; the failure of the judges and clerks to 
take the prescribed oath of office, they being nevertheless 
de facto officers ; 3 the neglect of the judges to certify the 
result within the time fixed by statute ; 4 or any other 
irregularity which does not cast uncertainty on the result, 
or affect the interests of the party complaining of it. 5 But 

i People v. Cook, 8 N. Y. 67. 

2 Newcum v. Kirtley, 13 B. Monroe (Ky.), 515. 

8 People v. Cook, 8 N. Y. 07 ; Taylor v. Taylor, 10 Minn. 112 ; Day 
v. Kent, 1 Oreg. 123. This doctrine has not always been recognized 
in Congress; hut the cases of Barnes v. Adams (2 Bartlett, 7(H)) and 
Eggleston v. Strader (2 Bartlett, 897) in the House of Representa- 
tives (1870) support it in approving careful reports of the committee 
on elections. 

4 Ex parte Heath, 3 Hill, 42; People r. Sackett, 14 Mich. 320. 

5 People v. Cook, 8 N. Y. 67- Lanier v. Gallatas, L3 La. An. 175 ; 
Dobyns v, Weadon, 50 Ind. 298; Bourland o. Hildreth, 26 Cal. 161; 
McKinney v. O'Connor, 26 Tex. 5 J Pike Co. r. Barnes, 51 Miss. 305; 
Whcelock Election Case, 82 Penn. St. 297 ; Loomis V. Jackson, 6 
W. Va. 613; Chicago v. People, 80 111. 496; Keid v. Julian, House oi 
Kep., 2 Bartlett, 822. 



284 CONSTITUTIONAL LAW. 

the following are not mere irregularities. The submission 
of a question to vote in such manner as to exclude a por- 
tion of those who are entitled to take part in the election, 1 
holding the polls open but forty minutes when the law 
requires three hours, 2 and holding it at a different time 
or different place from that fixed by law, 3 though even in 
these cases an election may be supported If it is made to 
appear that no one lost his vote as a consequence of the 
law being disobeyed. 4 When an election is contested be- 
cause of the reception of illegal votes, the effect which 
shall be allowed to that circumstance must depend very 
much upon other facts. If the judges have erroneously, 
but in good faith, received incompetent votes, the elec- 
tion will not in general be defeated thereby ; 5 but when 
it can be shown for whom they were cast, they will be de- 
ducted from the count, and the case determined without 
them. 6 If, however, they have been received fraudulently, 
and the whole number is so great that the entire poll is 
tainted with the illegality, the election in that precinct 
ma} r be set aside altogether, as has frequently been done 
in Congress. 7 If a legal vote is wrongfully rejected, it 
cannot be counted on an}' showing of the intent to cast it 

1 Attorney General v. Supervisors, 11 Mich. 63. See People v. 
Salomon, 46 111. 415; Fort Dodge v. District Township, 17 Iowa, 85; 
Barry v. Lauck, 5 Cold. (Tenn.) 588. 

2 State v. Wollem, 37 Iowa, 131 ; Tehhe v. Smith, 108 Cal. 101. 

3 Dickey v. Hurlburt, 5 Cal. 343; Walker v. Sanford, 78 Ga. 165; 
Williams v. Potter, 114 111. 628. 

4 Dale v. Irwin, 78 111. 170; Steele v. Calhoun, 61 Mass. 556; Far- 
rington v. Turner, 53 Mich. 27 ; Simons v. People, 119 HI. 617. 

5 Ex parte Murphy, 7 Cow. (N. Y.) 153; Judkins v. Hill, 50 N. H. 
140 ; Tarbox v. Sughrue, 36 Kans. 225. 

6 State v. Hilmantel, 21 Wis. 566 ; Harhaugh v. Cicotte, 33 Mich. 
241. 

7 Howard v. Cooper, 1 Bartlett, 275 ; Dodge v. Brooks, 2 Bartlett, 
78 ; Myers v. Moffett, 2 Bartlett, 564 ; Switzer v. Dyer, 2 Bartlett, 777. 
Sometimes the return of the election has been rejected, and only those 
votes counted which can he shown to have been legally cast. Wash- 
burn v. Voorhies, 2 Bartlett, 54. Compare Chadwick v. Melviis, 
Brightly's Election Case^ 251. 



POLITICAL PRIVILEGES. 285 

for a particular candidate ; 1 though if the number re- 
jected is so great that they might possibly have changed 
the result, the election may be declared void for that 
reason. 2 

Eligibility to Office. — The Constitution and laws of the 
United States determine what shall be the qualifications 
for Federal offices, and State constitutions and laws can 
neither add to nor take away from them. This has been 
repeatedly decided in Congress, in the case of persons 
elected to seats therein when provisions in the State con- 
stitution, if valid, would render them ineligible. 3 When 
the law is silent respecting qualifications to office, it must 
be understood that electors are eligible, but no others. 4 
The question has often been made, what shall be the rule 
when an ineligible person receives a sufficient number of 
votes to elect him if he were qualified ; and the authorities 
are greatly divided on the subject. In England under 
such circumstances the person receiving the next highest 
number of votes will be declared elected, especially if the 
ineligibility of the leading candidate was notorious ; 5 and 
some of the American States follow this course. 6 The de- 
cided weight of authority in this country, however, is that 
in such case the election has failed ; the votes cast for the 
disqualified person, though not electing him, being enough 
to show that the people have not intended to choose any 

1 Benner v. Bennett, 21 Ohio St. 431, 450. 

2 Renner v. Bennett, 21 Ohio St. 431. In Congress, votes •wrong- 
fully rejected have generally heen counted on evidence being given to 
show how the electors intended to cast them. See Delano v. Morgan. 
2 Bartlett, 168. It would certainly he very proper to provide by statute 
that votes offered and rejected should be marked and preserved, in 
order that they might be counted in case it should afterwards appear 
that there was error in rejecting them. 

8 Taney v. Marshall, l Bartlett, 167 j Trumbull's Case, Ibid. 619, 

4 State u. Smith, 14 Wis. 497. 

c French v. Nolan, 2 Moak, 711 ; McCrary, Am. Law of Elections, 
§ 231 ; Cooley, Const. Lim., Gth ed., 780. 

6 Gulick v. New, 14 Ind. 93 ; Price v. Baker, 41 Ind. 570 , Hatch 
eeon v. Tilder. 4 II. & Mcll. (Md.) 279. 



286 CONSTITUTIONAL LAW". 

other person, 1 Such has been the conclusion of notb 
houses of Congress. 2 The forfeiture of eligibility to office* 
it is sometimes declared, shall follow some specified breach 
of the law ; such, for example, as the giving or receiving 
a bribe, the sending or accepting a challenge to fight a 
duel, &c. This renders the act which is thus condemned 
a public offence, and the disqualification becomes a pun- 
ishment. The determination whether the offence has been 
committed involves an inquiry into the law and the facts, 
and this, being in its essence a judicial inquiry, must be 
had before a judicial tribunal, and the disqualification 
regularly adjudged before the punishment can be inflicted. 
The determination cannot be left to a canvassing board, 
or to mere ministerial officers. 3 

Freedom of Elections. — An election fails in its legiti- 
mate purpose when the electors are subjected to such influ- 
ences that they abstain from depositing their ballots at all, 
or give them un intelligently, or from improper and corrupt 
motives, or under the influence of fear or compulsion. 
| When any considerable number of voters are kept from 
the polls through reasonable fear of personal injury from 
riotous mobs, or from abuse of legal authority, the elec- 

1 Decisions to that effect in Wisconsin, Rhode Island, Pennsylvania, 
Missouri, Michigan, Maine, Louisiana, California, Mississippi, and 
Georgia are given in Cooley's Const. Lim., 6th ed., 780. And see 
Stephens v. Wyatt, 17 B. Monr. (Ky.) 547. If the disability merely 
concerns the holding of the office and is not a disability to be elected, 
it is enough if the disability is removed before entering upon the term. 
State v. Trumpf, 50 Wis. 103 ; Privett v. Bickford, 26 Kans. 52. 
Where an alien who has not declared his intention to become a citizen 
is not an elector and only electors are eligible, such alien cannot hold 
office by declaring his intention after his election. State v. Sullivan, 
67 Minn. 379. Contra, Smith v. Moore, 90 Ind. 294. 

2 Cushing, Leg. Assem., 66. The subject was fully and carefully 
considered in the contested election case of Smith v. Brown, in the 
House of Representatives (186S), and the doctrine of the text has been 
acted upon repeatedly since. 

3 Commonwealth v. Jones, 10 Bush (Ky.), 725, approving In re 
Dorsey, 7 Port. (Ala.) 293, and Huber v. Reily, 53 Penn. St. 112. Sec 
Ex parte Garland, 4 Wall. 333. 



POLITICAL £R1VILTSGES* 28*1 

fcion should be deemed altogether void. Congressional 
elections have often been declared void because of intimi- 
dation, when there was reason to believe that electors 
sufficient in number to have changed the result were 
deterred from depositing their ballots through fear or 
actual violence. A careful writer of much experience 
gives the following rules as deductions from the decisions 
in Congress : — 

"1. If the violence and intimidation have been so ex- 
tensive and general as to render it certain that there has 
been ho fair and free expression by the great body of elec- 
tors, then the election must be set aside, notwithstanding 
the fact that in some of the precincts or counties there 
was a peaceable and fair election. 

" 2. When there has been an election embracing a num- 
ber of counties or precincts in which there have been vio- 
lence and intimidation, enough to exclude from the count 
one or more precincts or voting places, but not enough to 
destroy the freedom and fairness of the election as a whole, 
such violence will not invalidate the election, nor affect the 
results of it," unless it be shown affirmatively that but for 
it the -esults would have been different. 

"3. The question must be, Has the great body of the 
electors had an opportunity to express their choice through 
the medium of the ballot and according to law? and this 
fact must be decided in the light of all the facts and cir- 
cumstances shown in the evidence." l 

The presence of a military force at or near the polls of 
an election, commanded by those who favor a particular 
candidate or party, is almost of necessity a menace to the 
electors, and an interference witli them in giving their suf- 
frages freely, 2 and in England and some of the States of 
the Union even the training of the militia on election day 
is forbidden by law. It is usual, also, to forbid the service 

1 MeOrary, Am. Law of Elections, § 4*29. Sec Hunt v. Sheldon, 
ttonse of Rep. (I860). 

2 McCrary, Am. Law of Elections, §§ 418, 421. 



288 CONSTITUTIONAL LAW. 

of legal process on election day, lest it be employed as a 
measure of intimidation to voters who are in debt. \ Betting 
upon the results of elections is illegal at common law, be- 
cause it tends to bring improper influences to bear upon 
the results. So are all contracts which have the same 
tendency. 1 A vote may properly be rejected in a contest 
over an election when it appears that it was obtained for 
a valuable consideration. 2 ) Treating electors to intoxicat- 
ing drinks on the day of election is very commonly pro- 
hibited, not only because it is a species of bribery, but 
also because it tends to unfit the voters for the intelligent 
discharge of their duties. 

Canvass and Return of Votes. — Ballots cast are to be 
canvassed in the various electoral districts or precincts, 
and a report made of the results. If the officers to be 
chosen are for that district only, the judges of the elec- 
tion are usually empowered to decide who is elected; but 
if they are for a division of the State embracing several 
election districts, the local judges will be required to make 
returns to a canvassing board, authorized to canvass the 
returns for the whole division, and to declare the election 
as it appears upon such returns. The general rule in the 
several States is that these division or district canvassers 
act in the performance of their duties in a ministerial way 
only ; that is, that they are to receive the returns that are 
transmitted to them in apparent conformity to the law as 
correct, and they are not to assume the judicial function 
of going behind them to inquire into facts, but must leave 
any allegation of error, mistake, or fraud to be inquired 
into in some regular judicial contest, if the parties con- 
cerned shall afterwards see fit to institute it. 3 If a return 

i" Nichols v. Mudgett, 32 Vt. 546 ; Meacham v. Dow, 32 Vt. 721 ; 
Piatt v. People, 29 111. 54 ; Duke v. Asbee, 11 Ired. (N. C.) 112; Ham 
v. Smith, 87 Penn. St. 63 ; Harvey v. Tama County, 53 Iowa, 228 ; 
Glover v. Taylor, 38 La. Ann. 634. 

>2 State v. Olin, 23 Wis. 309, 327 ; State v. Purdy, 36 Wis. 213. 

3 Ex parte Heath, 3 Hill (N. Y.), 42 ; Opinions of Judges, 64 Me. 
588 ; Phelps v. Schroder, 26 Ohio St. 549 ; People v. Hilliard, 29 HI. 



POLITICAL PRIVILEGES. 289 

{s void on its face, it must of course be rejected ; * but it 
would be almost a matter of course to permit errors of 
form to be corrected by the local board when the case 
admitted of it. Forgery in the returns the canvassing 
board must necessarily inquire into, since a forged return 
is in law no return at all. 2 

In a few of the States during the unsettled times fol- 
lowing the civil war, returning boards were provided for 
by law, with powers far surpassing those which any judi- 
cial body can exercise ; for they were empowered to revise 
and reject returns on ex parte showing, and thus to pro- 
ceed without trial and condemn parties not heard. It 
may no doubt be safely assumed that the time when such 
excessive powers could be created or tolerated has passed 
away. 

Canvassing boards in the performance of their duties 
are, like other ministerial or administrative bodies, under 
the control of judicial authority, and when they neglect 
or refuse to obey the law may be coerced by means of the 
writ of mandamus. 3 

Contesting Elections. — It is no doubt competent to pro- 
vide by the State constitution that the decisions of the 
canvassing board upon the election of any officers under 
the State shall be conclusive. 4 This, however, is unusual ; 

413 ; State v. Governor, 25 N. J. 344; State v. Harrison, 38 Mo. 540; 
Taylor v, Taylor, 10 Minn. 107 ; Switzer v. Dyer, House of Rep. (1870) ; 
Coll v. Board of Canvassers, 83 Mich. 367. 

1 State v. State Canvassers, 36 Wis. 498; Terry v. Whittaker, 71 
N. C. 475. 

2 Attorney General v. Barstow, 4 Wis. 567. The hoard should cor- 
rect an arithmetical mistake in the returns. State v. Hill, 20 Neb. 1 19. 

3 Commonwealth y. Emminger, 74 Penn. St. 479: Clark y. Mcken- 
zie, 7 Bush (Ky.), 523; State v. Gihhs, 13 Fla. 55 j Bank r. Super- 
visors, 4 W. Va. 371 ; Kisler v. Cameron, 89 Intl. 488; State r. County 
Com'rs, 23 Kans. 264; Simon v. Durham, 10 Oreg, 52; State y. Berg, 
76 Mo. 136. 

4 Grier y. Shackleford, Const. Be]). (S. C.) 642; Batman o. Me- 
gowan, 1 Met. (Ky.) 533; Stato v. Marlow, 15 Ohio St. 114; People 
v. Goodwin, 22 Mich. 496 ; Baxter w. Brooks, 29 Ark. 173. 

19 



290 CONSTITUTIONAL LAW. 

and in general the party who claims to have been deprived 
of an office unjustly by the results of the canvass may 
have his claim tried in the courts. In some cases it has 
been held that jury trial upon such a claim is matter of 
right, 1 but this is denied in others; 2 and there is much 
reason for saying that the State may provide any method 
that seems most consistent with public policy for deter- 
mining who, by the result of an election, is entitled to be 
recognized as the official administrator of its laws. 3 It is 
different when the question is one of the forfeiture of an 
office ; for when once acquired, the incumbent has prop- 
erty rights in it. 

Legislative elections are determined by the body for a 
seat in which the election is had. This is expressly pro- 
vided by the Constitution in the case of the two houses of 
Congress, 4 aud the judiciary can in no manner interfere 
with their conclusions. The evidence in a legislative con- 
test is usually taken by committees, and the case decided 
on the committee's report. On general principles a case 
once decided should be considered closed forever. 5 
I Fifteenth Amendment. — By the fifteenth article of the 
amendments it is provided that " the right of citizens of 
the United States to vote shall not be denied or abridged 
by the United States, or by any State, on account of race, 
color, or previous condition of servitude." This provision 
gives to the freedmen and other colored persons the right 
to impartial consideration in the law of suffrage in the 
several States. 

1 State v. Bennett, 2 Ala. 140; People v. Railroad Co., 57 N.Y. 160. 

2 Ewing v. Fuller, 43 Penn. St. 384 ; Commonwealth v. Leech, 44 
Penn. St. 332 ; State v. Johnson, 26 Ark. 281 ; State v. Lewis, 51 Conn. 
113. 

3 Kennard v. Louisiana, 92 U. S. 480. 

4 Const., Art. I. § 5. Provisions for contested elections to Congress 
are made by Rev. Stat. U. S., ch. 8. 

5 Mr. McCrary, in the sixth chapter of his treatise on the Law of 
Elections, has gone at some length into the evidence receivable b/ 
legislative committees. 



POLITICAL PRIVILEGES. 291 

The second clause of the fourteenth article was intended 
to influence the States to bring about by their voluntary 
action the same result that is now accomplished by this 
amendment. It provided that when the right to vote was 
denied to any of the male inhabitants of a State, being 
twenty-one years of age and citizens of the United States. 
or any way abridged except for participation in crime, the 
basis of representation in Congress should be reduced in 
the proportion which the number of such male citizens 
should bear to the whole number of male citizens twenty- 
one years of age in such State. By this, the purpose 
was to induce the States to admit colored freemen to the 
privilege of suffrage by reducing the representation and 
influence of the States in the Federal government, in 
case they refused. No opportunity occurred for testing 
the efficacy of this plan previous to the adoption of the 
fifteenth article, and it cannot therefore be affirmed whether 
it would or would not have been successful. Important 
questions, however, may still arise under it. The provis- 
ion is general ; it is not limited to f reedmen, but it applies 
wherever the right to vote is denied to male citizens of 
the proper age, or is abridged for other cause than for par- 
ticipation in crime. The State of Connecticut denies the 
right of suffrage to all who cannot read, and Massachu- 
setts and Missouri to all who cannot both read and write ; 
and many of the States admit no one to the privilege of 
suffrage unless he is a tax-payer. So in the majority 
of the States a citizen absent therefrom, though in the 
public service, canuot vote, because the State requires as 
a condition the personal presence of the voter at the polls 
of his municipality. Possibly it ma} 7 be said, in respect 
to such cases, that the representation of the State should 
be reduced in proportion to the number of those who are 
excluded because they cannot read and write, or do not 
pay taxes, or are absent. It is not likely, however, that 
any such position would be sustained. To require the 
payment of a capitation tax is no denial of suffrage; it 



292 CONSTITUTIONAL LAW. 

is demanding only the preliminary performance of public 
duty, and may be classed, as may also presence at the 
polls, with registration, or the observance of any other 
preliminary to insure fairness and protect against fraud. 
Nor can it be said that to require ability to read is any 
denial of suffrage. To refuse to receive one's vote be- 
cause he was born in some particular country rather than 
elsewhere, or because of his color, or because of any natu- 
ral quality or peculiarity which it would be impossible for 
him to overcome, is plainly a denial of suffrage. But 
ability to read is something within the power of any man ; 
it is not difficult to attain it, and it is no hardship to re- 
quire it. On the contrary, the requirement only by indi- 
rection compels one to appropriate a personal benefit he 
might otherwise neglect. It denies to no man the suf- 
frage, but the privilege is freely tendered to all, subject 
only to a condition that is beneficial in its performance, 
and light in its burden. If a property qualification, or 
the payment of taxes upon property when one has none 
to be taxed, is made a condition to suffrage, there may 
be room for more question. 

Discriminations in Naturalization. — Although the Fif- 
teenth Amendment forbids discriminations founded on 
race, color, &c, as between citizens, it does not forbid 
discriminations in the naturalization laws. Indeed, at the 
time when this amendment was adopted only white per- 
sons were permitted to become citizens by naturalization, 
and the amendment to the laws since made only extends 
the privileges to persons of African descent. 1 

Reasons for the Amendment. — The experiment of 
impartial suffrage, though confessedly under the circum- 
stances one of much danger, was entered upon under the 
influence of two sets of reasons ; the first of which had 
in view the interest of the colored people, and the second 
contemplated the general interest of the country. The 
experiment, it was believed, would benefit the colored 
1 Rev. Stat. U. S., § 2169; Act of July 14, 1870. 



, POLITICAL PRIVILEGES. 293 

race, first, because it would give to them importance, se- 
cure to them respect, and protect them against unfriendly 
action or legislation ; and, second, because it would be to 
them an educational process of the highest importance, 
not only as it would incite them to prepare themselves for 
the duties of citizenship, but as it would accustom them 
to the practical performance of such duties. 

An opinion has been expressed that these were the reat 
purposes of the amendment. 1 But as all rules of suffrage 
contemplate the benefit of the State rather than that of 
individuals, we may assume that the advantage to individ- 
uals was only a secondary purpose. The reasons why tli2 
change was thought to be important on public grounds 
were, first, that unless the ballot was given to the freed- 
men the government of the Southern States must for a 
considerable time be in the hands of those lately in re- 
bellion, and who might be expected not to co-operate in 
government heartily and cordially with those from whose 
political association they had so strenuously endeavored 
to break away ; and, second, that the existence in the 
political community of a great body of citizens, against 
whom the laws discriminate in a particular which makes 
tbe discrimination a stigma and a disgrace, must always 
be an occasion of discontent, disorder, and danger. 

The experiment, however fraught with danger, was di- 
rectly in the line of others which began with the organ- 
ization of the government. All changes had been in the 
direction of enlarging the basis of suffrage, and this 
amendment did not originate the embarrassments and 
dangers attending unintelligent participation in elections, 
but only added to them. 

Legislation. — The Fifteenth Amendment empowers 
Congress to enforce it by appropriate legislation. It is 
unquestionable that the amendment is soil' executing to this 
extent, that all laws and all provisions of State constitu- 
tions which conflict with it were at once annulled. Con 
1 Hunt, J., ill United Slates r. Reese, 92 U. S. 214, 217. 



294 CONSTITUTIONAL LAW. 

gressional legislation could only be needed to prevent the 
impartial rule of the Constitution being nullified by failure 
of officers to give effect to it. 

In considering legislation adopted by Congress, the 
Supreme Court has laid down the following general 
principles : — 

1. The Constitution of the United States confers the 
right to vote upon no one. That right comes to the citi- 
zens of the United States, when they possess it at all, 
under State laws, and as a grant of State sovereignty. 
But the Fifteenth Amendment confers upon citizens of the 
United States a new exemption ; x namely, an exemption 
from discrimination in elections on account of race, color, 
or previous condition of servitude. This exemption the 
United States may protect by appropriate legislation. 

2. The power in Congress to legislate at all on the sub- 
ject of voting at State elections rests upon the Fifteenth 
Amendment. The whole subject was in the hands of the 
States before, and Congress obtained a right to intervene 
only by the amendment, and to the extent that should be 
needful to protect the exemption to which citizens of the 
United States thereby became entitled. 2 

Section III. — The Eight of Assembly and 
Petition. 

TJie Constitution. — The First Amendment to the Consti- 
tution further declares that Congress shall make no law 
abridging the right of the people peaceably to assemble 

1 When the constitution or laws of a State do not on their face 
discriminate between races, and it is not shown that their actual ad- 
ministration is evil, only that evil is possible under them, there seems to 
be no violation of the Federal Constitution. Williams v. Mississippi, 
170 U. S. 213. 

2 United States v. Eeese, 92 U. S. 214 ; United States v. Cruikshanks, 
92 U. S. 542. The student will remember that the Federal govern- 
ment can make laws for the protection of purity of elections where 
Congressmen are chosen. See ante, p. 278. 






POLITICAL PBIVILEGES. 295 

and to petition the government for a redress of griev- 
ances. Two rights are protected by this provision : the 
right of the people to assemble themselves together, and 
the right of petition ; but they are protected as against 
Federal action only. 1 

The People. — When the term " the people " is made use 
of in constitutional law or discussions, it is often the case 
that those only are intended who have a share in the gov- 
ernment through being clothed with the elective franchise. 
Thus, the people elect delegates to a constitutional con- 
vention, and determine by their votes whether the com- 
pleted work of the convention shall or shall not be adopted ; 
the people choose the officers under the Constitution, and 
so on. For these and similar purposes the electors, 
though constituting but a small minority of the whole 
body of the community, nevertheless act for all, and, as 
being for the time the representatives of sovereignty, they 
are considered and spoken of as the sovereign people. But 
in all the enumerations and guaranties of rights the whole 
people are intended, because the rights of all are equal, 
and are meant to be equalty protected. In this case, there- 
fore, the right to assemble is preserved to all the people, 
and not merely to the electors, or to any other class or 
classes of the people. 

Right to Assemble. — The right to assemble may be 
important for religious, social, industrial, or political pur- 
poses ; but it was no doubt its political value that was in 
view in adopting the amendment. To assemble for re- 
ligious purposes is a part of the religious liberty of the 
people, and required no additional protection. Social 
meetings and industrial meetings are seldom likely to be 
disturbed by the authorities, except when they are believed 
to contemplate public disorder, and are in open defiance 

1 United States w. Oruikslmnks, 92 U. S. 542. The First Amendment 
is of course binding on the national government only ; but to petition 
Hono;ross for a redress of grievances is evideutly a privilege of United 
Statos citizenship which cannot be abridged by a State. Ibid., p. 55i 



296 CONSTITUTIONAL LAW. 

of the law ; but there must be an actual breach of the law 
before they can be intermeddled with. Individuals may 
perhaps render themselves liable to arrest by threats, but 
these only constitute individual misconduct. 

A political meeting by electors may have one purpose, 
and that by non-electors another. The former will usually 
meet for some purpose preparatory to the exercise of the 
political franchise, such as to hear addresses, select candi- 
dates for their suffrages, and the like, or perhaps to peti- 
tion those for the time in authority in respect to something 
in which they may take special interest. , The non-electors 
may also meet for petition or remonstrance, or, on the 
other hand, they may meet to express their sense of wrong 
at being excluded from political privileges, and to demand 
a right to participate with others. A demand for equality 
of political privilege by a disfranchised class, persistently 
made and pressed, has often made itself heard, and the 
constitution of the land has been altered in response to it. 
Still more often statutes have been enacted, modified, or 
repealed, in deference to the appeals of those who were 
not allowed the right to vote ; and perhaps the right of 
assembly on their part is more important to the State than 
the same right on the part of those who may make them- 
selves heard through their direct participation in the 
government. 

The right of assembly always was, and still is, subject 
to reasonable regulations by law. Parliament has some- 
times been compelled to interpose strict regulations, when 
a great and tumultuous body of people threatened to ap- 
pear at its doors to present a demand for a change in 
the law. 

Right to Petition. — The right to petition is not co- 
extensive with the right to assemble ; for in its nature-it 
can have no place in merely social affairs, though it has 
a limited range in religious and industrial organizations. 
Petition is for the redress or prevention of grievances, and 
is addressed to some person or body having, in respect to 



POLITICAL PBIVILEGES. 297 

the matter in hand, superior authority. It is a i 
term, however, and applies to all recommendat 
office or public position or privilege, as well as to remon- 
strances against them, and to appeals of every sort, and 
for every purpose, made to the judgment, discretion, or 
favor of the person or body having authority in the 
premises. 1 

A petition is, nevertheless, merely a privileged publica- 
tion, and the right to be heard by means of it may be so 
abused as to take away the privilege. One must not re- 
sort to it for the purpose of visiting his malice upon others, 
through the publication of false charges; but when the 
occasion is proper for petition, good motives in presenting 
it will be presumed, and the fact that it contains false and 
injurious aspersions of character will not make out a right 
of action, but malice in the petitioner must be established 
also. 2 The petition must be for something within the au- 
thority of the person or body addressed to grant, or must 
in good faith be supposed to be; 3 and when it is, it will 
be protected while circulating for signatures, as well as 
after it has been presented. 4 But if a false charge is 
merely put in the form of a petition, without the intent to 
present it, it is not within the privilege. 5 

Section IV. — The Right to Keep and Bear Arms. 

\The Constitution. — By the Second Amendment to the 
Constitution it is declared that " a well regulated mili- 
tia being necessary to the security of a free State, the 
right of the people to keep and bear arms shall not be 
infringed."^ 

1 Kershaw v. Bailey, 1 Exch. 743; Bradley /•. Heath, 12 Pick. 
(Mass.) 163. 

2 Gray??. Pentland, 2 S. & R. (Perm.) 23; Howard v. Thompson 

21 Wend. (N. Y.) 319. 

8 See Fairman v. Ives, 5 P>. & Aid. 642. 

4 Vanderzee v. McGregor, 12 Wend. (N- Y.) 545. 

6 State v, Burnliam. 9 N. 11. 34. 



COtfSTITtJTIONAL LAW. 

amendment, like most other provisions in the Con- 
stitution, has a history. It was adopted with some modi- 
• 1 and enlargement from the English Bill of Rights of 
vtiere it stood as a protest against arbitrary action 
of the overturned dynasty in disarming the people, and as 
ye of the new rulers that this tyrannical action should 
The right declared was meant to be a strong moral 
check against the usurpation and arbitrary power of rulers, 
and as a necessary and efficient means of regaining rights 
when temporarily overturned by usurpation. 1 

The Bight is General. — It may be supposed from the 
phraseology of this provision that the right to keep and 
bear arms was only guaranteed to the militia; but this 
would be an interpretation not warranted by the intent. 
The militia, as has been elsewhere explaiued, consists of 
those persons who, under the law, are liable to the per- 
formance of military duty, and are officered and enrolled 
for service when called upon. But the law may make pro- 
vision for the enrolment of all who are fit to perform mili- 
tary duty, or of a small number only, or it may wholly 
omit to make any provision at all ; and if the right were 
limited to those enrolled, the purpose of this guaranty 
might be defeated altogether by the action or neglect to 
act of the government it was meant to hold in check. The 
meaning of the provision undoubtedly is, that the people, 
from whom the militia must be taken, shall have the right 
to keep and bear arms, and they need no permission or 
regulation of law for the purpose. But this enables the 
government to have a well regulated militia ; for to bear 
arms implies something more than the mere keeping ; it 
implies the learning to handle and use them in a way that 
makes those who keep them ready for their efficient use ; 
in other words, it implies the right to meet for voluntary 
discipline in arms, observing in doing so the laws of 
public order. 

Standing Army. — A further purpose of this amend 

i 1 Tuck. Bl. Com, App. 300. 



POLITICAL PRIVILEGES. 299 

ment is, to preclude any necessity or reasonable excuse 
for keeping up a standing army. A standing army is con- 
demned by the traditions and sentiments of the people, as 
being as dangerous to the liberties of the people as the 
general preparation of the people for the defence of their 
institutions with arms is preservative of them. 
f What Arms may be kept. — The arms intended by the 
Constitution are such as are suitable for the general de- 
fence of the community against invasion or oppression, 
and the secret carrying of those suited merely to deadly 
individual encounters may be prohibited. 1 

Section V. — Freedom of Speech and of the Press. 

( The Constitution. — The First Amendment to the Con- 
stitution further provides that Congress shall make no law 
abridging the freedom of speech or of the press. ' What is 
first, noticeable in this provision is that it undertakes to 
give no rights, but it recognizes the rights mentioned as 
something known, understood, and existing, and it forbids 
any law of Congress that shall abridge them. We are 
thus referred for an understanding of the protection to the 
pre-existing law; and this must either have been the com- 
mon law, or the existing statutes of the States. The 
statutes, however, will be found to be nearly silent on this 
important subject, and the common law must be our guide. 
Freedom of the Press. — De Lolme, who wrote upon 
the Constitution of England just before the meeting of the 
Constitutional Convention, and who .undertook to gather 
from the common law the meaning of this among other 
principles of liberty, has expressed his conclusion thus : 
" Tlie liberty of the press as established in England con- 
sists in this, that neither the courts of justice, nor any 
other judges whatever, are authorized to take notice of 
writings intended for the press, but are confined to those 

1 Andrews y. Stale, 3 Ileisk. 1 (*>:>, found also with notes in 1 Greeu'a 
Cr. Rep. 406, ami 8 Am. Hep. S; State v. Shelby, DO Mo. 302. 



BOO CONSTITUTIONAL LAW. 

which are actually printed, and must in these cases pro- 
ceed by the trial by jury." 1 Mr. Justice Blackstone 
adopted this view as undoubtedly correct, 2 and in this 
country it has been accepted as expressing the views of 
those who framed and adopted' this amendment. 3 If it 
expresses their views fully, we must conclude that the 
amendment is aimed only at such censorship of the press 
as had sometimes been exercised in England, and to some 
extent in the Colonies also, and that, while forbidding this, 
and leaving every one to publish what he might please, it 
left him, at the same time, to such responsibility for his 
publications as the law might provide. 

It seems more than probable, however, that the con- 
stitutional freedom of the press was intended to mean 
something more than mere exemption from censorship in 
advance of publication. Such censorship had never been 
general in the Colonies : it did not exist at all at the time 
of the Revolution, and there was no apparent danger of its 
ever being restored. To forbid it, therefore, and especially 
just at a time when the people had been taking a larger 
share in the government into their own hands, and when 
the command would be laid on their own representatives, 
would appear to savor somewhat of idle ceremony. But 
the history of the times shows that the people believed a 
right of publication existed which might be invaded and 
abridged by oppressive prosecutions, and by laws which 
admitted the liberty to publish, but enlarged beyond reason 
the sphere of responsibility ; and the evils they feared had 
no necessary connection with any established or threat 
ened censorship. Nor could any valuable purpose be ac- 
complished by introducing in the Constitution a provision 
which should forbid merely a previous supervision of in- 
tended publications, if the law might be so made, or so ad- 
ministered, as to inflict punishment for publications which 

1 De Lolme, Const, of Eng., ch. 10. 2 4 Bl. Com., 151. 

2 Rawle on Const., ch. 10; 2 Kent, 17; Story on Const., § 1889. 
Commonwealth v. Blanding, 3 Pick. (Mass.) 304, 313. 



POLITICAL PRIVILEGES. 301 

might be not only innocent, but commendable. The citi- 
zen might better have the arm of the government inter- 
posed for prevention, than reached out afterwards to inflict 
penalties; his just freedom would be restrained in the 
one case as well as in the other. 

Light may be thrown upon the intent by a consideration 
of the purposes which the enjoyment of the right sub- 
serves. The press is a public convenience, which gathers 
up the intelligence of the day to lay before its readers, 
notifies coming events, gives warning against disasters, 
and in various ways contributes to the happiness, comfort, 
safety, and protection of the people. But in a constitu- 
tional point of view its chief importance is, that it enables 
the citizen to bring any person in authority, any public 
corporation or agency, or even the government in all its 
departments, to the bar of public opinion, and to compel 
him or them to submit to an examination and criticism of 
conduct, measures, and purposes in the face of the world, 
with a view to the correction or prevention of evils ; and 
also to subject those who seek public positions to a like 
scrutiny for a like purpose. These advantages had been 
fully realized and enjoyed by the people during the revo- 
lutionary epoch ; the press had been the chief means of 
disseminating free principles among the people, and in 
preparing the country to resist oppression ; and its powers 
for good in this direction had appeared so great as to cast 
its other benefits into the shade. It is a just conclusion, 
therefore, that this freedom of public discussion was meant 
to be fully preserved ; and that the prohibition of laws im- 
pairing it was aimed, not merely at a censorship of the 
press, but more particularly at any restrictive laws or ad- 
ministration of law, whereby such free and general dis- 
cussion of public interests and affairs as had become 
customary in America should be so abridged as to deprive 
it of its advantages as an aid to the people in exercising 
intelligently their privileges as citizens, and in protecting 
their liberties. 



802 CONSTITUTIONAL LAW. 

The freedom of the press may therefore be defined to be 
the liberty to utter and publish whatever the citizen may 
choose, and to be protected against legal censure and pun- 
ishment in so doing, provided the publication is not so far 
injurious to public morals or to private reputation as to be 
condemned by the common law standards, by which de- 
famatory publications were judged when this freedom was 
thus made a constitutional right. And freedom of speech 
corresponds to this in the protection it gives to oral 
publications. 1 / 

Blasphemous and indecent publications, and the exhibi- 
tion of indecent pictures and images, were always punish- 
able at the common law, and their punishment may be 
provided for by Congress in any territory under its ex- 
clusive control. Libellous written, printed, or pictorial 
attacks upon individuals, maliciously made, were also 
criminal; and if, in respect to these offences, the com- 
mon law should be found defective, statutory law may 
supply the defects, — not, however, enlarging the general 
scope of liability. Besides the criminal, there was always 
a civil responsibility, in the case of any false and mali- 
cious publication calculated to disgrace or injure an indi- 
vidual, and damages might be recovered by the party 
wronged, whether the publication was made by writing or 
print, or was merely oral. These rules are consistent 
with a just freedom, and they remain undisturbed. 

The cases which are important in a constitutional point 
of view are those which are said to be privileged ; by 
which is meant that the party is protected against respon- 
sibility, either civil or criminal, notwithstanding his publi- 
cation may prove both unfounded and injurious. There 
are two classes of privilege, the one absolute, or where 
the protection is complete and perfect, and the other con- 
ditional and dependent on motive. Some of these cases 
rest on grounds of private confidence merely, and are not 

1 Coolev, Const. Lim., 6th ed., 518. 



POLITICAL PRIVILEGES. 303 

important here ; but others rest on public and general 
reasons. 

Cases of Absolute Privilege. — One of these is provided 
for specially in the clause of the Constitution which de- 
clares that members of Congress, for any speech or debate 
in either house, shall not be questioned in any other place. 1 
Another relates to what is said by a witness in the course 
of judicial proceedings, and which is not allowed to be 
made the ground of a civil action, however false and 
malicious it may be, though the State may punish the per- 
jury. 2 A like protection is thrown around what a juror 
may say to his fellows in the jury room, concerning the 
.parties to the case submitted to them, or concerning those 
who may have given evidence therein. 3 Complaints for 
the purpose of bringing a supposed offender to trial, and 
the preliminary information on which the officers may act 
in originating proceedings have a similar privilege, 4 and 
so do pleadings and other papers in the progress of liti- 
gation, where in their statements they do not depart from 
the matter in controversy. 5 The Executive of the United 
States and the governors of the several States are exempt 
from responsibility for their official utterances, and so are 
all judges of courts, and all officers performing functions 
in their nature judicial, while acting within the limits of 
their jurisdiction. 6 The party to a cause, summing it up 
to jury or court, must have the utmost liberty of dealing 
with the actions, conduct, and motives of the opposing 
party and the witnesses, and the law protects this liberty 

i Const., Art. I. § 6. 

2 Marsh v. Ellsworth, 50 N. Y. 309 ; Terry v. Fellows, 21 La. Ann. 
375; Verner v. Vcrner, 64 Miss. 321. 

3 Dunham v. Powers, 42 Vt. 1. 

4 Dawkins u. Lord Pawlet, L. R. 5 Q. "R. 94. 

6 Garr v. Scldcn, 4 N. Y. 91 ; Strauss v. Meyer, 48 Til. 385 ; Wilson 
v. Sullivan, 81 Ga. 288; Runge w. Franklin, 72 'Vox. 585; Dada o. 
lMpcr, 41 Hun, 254; Bartlett r. Christhilf, 69 Md. 219. 

Townsheiul, Slander and Libel, § '2-7 ; Cooley on Torts, 2d oil, 
250. 



804 CONSTITUTIONAL LAW. 

and extends it to his counsel also ; and the latter, so. long 
as he keeps to the case in hand and does not wander from 
it for the purpose of detraction and abuse, may freely 
urge in the interest of his client what he believes the case 
demands. 1 j 

Libels on Government. — At the common law it was a 
criminal offence to publish anything against the constitu- 
tion of the country or the established order of govern- 
ment. This was upon the ground that the tendency of 
such publications was to excite disaffection with the gov- 
ernment, and thus to induce a revolutionary spirit. But 
a calm and temperate discussion of public events and 
measures was always in theory allowed, and every man 
had a right to give to every matter of public importance 
a candid, full, and free discussion. It was therefore only 
when a publication went beyond this, and tended to excite 
tumult, that it became criminal. But as the government 
itself will institute and conduct the prosecutions, and as 
the offence will consist in a criticism of the constitution 
and system of government as the authorities administer 
them, it is never likely that anything very effectual in 
criticism will be found by the prosecution to be either 
calm or temperate. The government prosecutions for 
libel in England have been so manifestly and notoriously 
unjust, unreasonable, and oppressive, that one advocate 
won a great name and a great place in the regard of the 
people in resisting them ; and at length public sentiment 
compelled their abandonment. A publication in criticism 
or condemnation of the government or Constitution of the 
United States is not punishable at the common law, for 
the reason that the United States as such has no common 
law, and can therefore punish as crimes only those acts 
which are made punishable by express statute. 2 Nor is 

1 Hoar v. Wood, 3 Met. (Mass.) 193 ; Maulsby v. Reif snider, 69 Md. 
143. In England counsel stand on the same ground as witnesses and 
judges, and their statements are absolutely privileged. Munster v. 
Lamb, 11 Q. B. P. 588. 

2 United States v. Hudson, 7 Cranch, 32. 



POLITICAL PRIVILEGES. 305 

i by any means clear that such publications could be 
made crimes by legislation. The right of the people to 
change their institutions at will is expressly recognized by 
Federal and State constitutions, and this implies a right 
to criticise, discuss, and condemn, and a right if possible 
to bring the people to the point of consenting to any 
change short of the abolition of republican institutions. 
It is believed that the sedition law of 1798 went to the 
very verge of constitutional authority, if not beyond it; 1 
and the entire failure to re-enact any similar legislation 
since is satisfactory evidence that it is regarded as un- 
necessary, if not unsound in principle. But conspiracies 
to overturn the government by force are always punish- 
able, and seditious publications are usually a part of the 
res gestae, of such offences. 

( Reports of Trials, &c. — Full' and fair reports of what 
takes place publicly in legislative bodies and their com- 
mittees, and in the courts high and low, are also abso- 
lutely privileged. The citizen has a right to be present 
at such proceedings, but the reasons which throw them 
open to spectators justify publication for the benefit of 
those who cannot or do not attend. It is only by pub- 
licity of proceedings that those to whom the liberty and 
civil and political rights of their fellows are submitted 
can be kept under a due sense of responsibility, and 
within the limits of the rules that should govern their 
conduct. 2 But the report must be confined to the pro- 
ceedings themselves, and must not indulge in defamatory 
observations, headings, or comments.* The privilege, 

1 The prosecutions under this law, reported iu Wharton's State 
Trials, pp. 333, 659, 684, and 688, are very instructive. They did 
more to excite disaffection to the government than all the misconduct 
complained of. 

2 Iloaro v. Silvorlock, 9 0. IV 20; Gazette (V v. Timberlake, 10 
Ohio St. 548. The publication before a hearing of the contents of a 
paper filed is not privileged. Cowley v. Pulsifer, 137 Mass. 92. 

8 Pittock v. O'Niel, 63 Penn. St. 253 ; Storey r. Wallace, 60 111 51 , 
Hayes v. Press Co., 127 Penn. St. 64'2. 

20 



306 CONSTITUTIONAL LAW. 

however, has never been extended to ex parte proceed* 
ings or examinations, the reason being that they tend to 
mislead the public rather than to enlighten it. 1 ; One 
may publish these, but at the peril of being held respon- 
sible if any untrue statement made in the publication 
proves injurious to the standing, reputation, or business 
of individuals. 

Cases conditionally Privileged. — In cases of absolute 
privilege the motive of the party making the publication 
is not suffered to be gone into, because the public benefit 
to be accomplished in the exercise of the privilege cannot 
be fully had without the most full and absolute exemption 
from civil responsibility. But there are some cases which 
are privileged in which it is perfectly reasonable to re- 
quire that the privileged party shall publish only what he 
believes, and that the occasion of the publication shall be 
such as to justify it if true. The following are such cases. 

Criticism of Officers and Candidates. — When one 
offers himself as a candidate for a public position, he 
voluntarily puts in issue his fitness for the place, and 
those who question it have a right to be heard before the 
people, and to give their reasons freely. When one holds 
a public office the issue offered is still broader, for the 
manner in which official duties have been performed comes 
in with his personal qualities, character, and habits, and 
may be discussed as something in which the public are 
concerned. Any citizen may speak freely, not only what 
he knows which bears upon the subject, but also what he 
believes and what he suspects, provided he has only the 
public interest in view and does not act maliciously. It 
must be said, however, that, while the authorities have 
conceded this rule, they have in some cases applied it with 
so little liberality as nearly to destroy its value. 2 

1 Usher v. Severance, 20 Me. 9. 

2 King v. Root, 4 Wend. (N. Y.) 113 ; Lewis v. Few, 5 Johns. (N. Y.) 
1 ; Cooley, Const. Lim., 6th ed., 529-542. See Burke v. Mascarich, 81 
Cal. 302 ; Eandall v. Evening News Ass., 79 Mich. 266 ; Upton v. Hume, 
34 Oreg. 420 



POLITICAL PRIVILEGES. 307 

Discussion of Public Affairs. — A like liberty of com- 
ment and discussion is allowed upon subjects in which 
the general public may reasonably be supposed to have an 
interest, and the discussion will be privileged if conducted 
within the bounds of moderation and reason, though indi- 
viduals may incidentally suffer therefrom. 1 The English 
authorities limit this privilege to cases of general, and not 
merely local interest, 2 though the reason for any distinction 
between them is not very apparent. But in matters of 
private interest, such as the affairs of a private corpora- 
tion, there is no such liberty of comment, except by and 
among the parties concerned. 8 j 

Criticism of Books, &c. — The publication of books, 
magazines, pamphlets, &c. is an assumption that they are 
fit to be read by the public, useful, and therefore proper 
for publication ; and whoever disputes this may freely 
publish his reasons, doing so in good faith, and taking 
care not to make his criticisms of the publication an 
excuse for assailing the author. 4 

The Truth as a Protection. — When the party com- 
plaining of an injurious publication brings suit for the 
recovery of damages, the truth of the publication is a 
complete defence, whether the case was or was not one 
of privilege. If nothing but the truth is published of an 
individual, it is no ground for the recovery of damages by 
him that the truth is so derogatory to his reputation that 
it injures him. But written or printed slander may bo the 
ground for a criminal prosecution also, and in criminal 
prosecutions a different principle applies. The injury then 
complained of is an injury to the public ; and when pri- 

1 Wason v. Walter, L. R. 4 Q. B. 73; Kinyon v. Palmer, 18 Iowa, 
377. 

2 Purcell w. Lawler, L. R. 1 C. P. D. 481 ; Gassett r. Gilbert, 6 Gray 
(Mass.), 94. 

3 Wilson v. Fitch, 41 Cat 863. 

4 Reade v. Sweetser, 6 Abb. Pr. (\. s.) 9, note; Merivale r. Carson, 
L. 1!. 20 Q. B. 1). 275; Dowling v. Li?inffstone, 66 N. W. Rep. 225 
(MacIi.). 



308 CONSTITUTIONAL LAW. 

vate reputation and conduct are needlessly dragged before 
the public to the disturbance of the peace of society, the 
public injury may be as great when only the truth is spoken, 
as when the publication is wholly untrue. The truth, 
therefore, is not in all cases a defence to a prosecution 
for criminal libel, but the publisher, in addition to the 
truth, must show that he made the publication with good 
motives and for justifiable ends. This is recognized in 
the constitutional provisions of the several States, which 
declare in substance that the truth shall be a complete 
defence in all prosecutions for libel, provided it was pub- 
lished with good motives and on justifiable occasion. If 
the publication was one proper to be placed before the 
public, either for the accomplishment of some commend- 
able public purpose, or for warning and protection to the 
public or to individuals, or even for the amendment of 
the person arraigned, the proper motives may be in- 
ferred ; 1 but where none of these things is apparent, the 
burden of proof is on the publisher to establish good 
motives and show a just occasion. But blasphemous and 
indecent publications could not be justified at all, since 
the necessary tendency must be evil. And the fact that 
the publication was merely the repetition of a charge 
made by another is by itself no defence whatever. 2 

The Jury Judges of the Law. — A provision in State 
constitutions that the jury shall be judges of the law in 
erimmal prosecutions for libel is common, and sometimes 
the provision is broader, and embraces all suits for libel 
and slander. These provisions had their occasion in early 
rulings of the courts, that the jury in suits for defamation 
of character must confine their attention to the fact of 
publication, and must receive the opinion of the court on 
the libellous or innocent character of the publication as 
conclusive. This doctrine was overruled by statute in 
England, and the jury are now permitted to judge of the 

1 State v. Burnham, 9 N. H. 34. 

2 Eegina v Newman, 1 El. & Bl. 268. 



POLITICAL PRIVILEGES. 309 

whole case, and to decide, not merely upon the respon- 
sibility of the publication, but upon the animus with which 
it was made, and whether within the rules of law the pub- 
lication is libellous. The instructions of the judge upon 
the law become under this rule advisory merely, and 
the jury may disregard them if their judgment is not 
convinced. 1 

'Publication of News. — No privilege has ever been 
accorded to the publishers of mere items of news except 
to this extent : that when the publication is made in good 
faith, in the ordinary course of business, and without in- 
tent to defame, the party injured will be restricted in his 
recovery to the actual damages. 2 Generally in suits for 
defamation of character the jury have a large discretion 
in awarding what are called exemplary damages. 

Meaning of '" the Press." — The freedom of the press 
is not limited to any particular form or method of publica- 
tion, but it extends to all modes of putting facts, views, 
and opinions before the public. Books, pamphlets, circu- 
lars, &c, are therefore as much within it as the periodical 
issues. 

1 The relations of court and jury under these provisions is well dis- 
cussed in Drake v. State, 53 N. J. Law, 23, where it is held that their 
purpose is to give the jury the right to render a general verdict upon 
the whole matter put in issue ; or in other words, to determine the law 
and the fact. 

2 Daily Post Co. v. Mc Arthur, 16 Mich. 447 ; Perrett v. N. 0. Times, 
25 La. Ann. 170 ; Fenstermaker v. Tribune Pub. Co., 12 Utah, 439. A 
statute embodying this rule as applied to newspapers has been upheld 
in Allen v. Pioneer Press Co., 40 Minn. 117. But the contrary ruling 
was made in Park v. Detroit Free Press Co., 72 Mich. 560, on the 
ground that it was class legislation. The exclusion of immoral mate- 
rial from the mail is not an interference with the freedom of the press 
Ex parte Jackson, 96 U. S. 727; In re Rapier, 143 U. S. 110. 



310 CONSTITUTIONAL LAW. 



CHAPTER XV. 
PROTECTIONS TO PERSONS ACCUSED OF CRIME. 

Section I. — Legislative Adjudications. 

General Considerations. — It is shown in a previous 
chapter that the people, by creating separate legislative 
and judicial departments of the government, by implica- 
tion forbid the former from exercising any powers that 
properly belong to the latter. Under this principle it 
might well be held that the power in the legislature to deal 
with crimes and their punishments, otherwise than by the 
establishment of general laws by which conduct should be 
judged in the future, was by implication forbidden. Even 
without the aid of that principle, it might well be said 
that to judge the conduct of men otherwise than by estab- 
lished laws existing when the acts complained of took 
place, or otherwise than by a judicial tribunal, must be 
understood as forbidden by necessary implication in the 
very organization of a free state. By general consent a 
legislative body, by its organization, its numbers, its 
direct responsibility to the popular majority, and the fact 
that it is chosen for other duties, is not a fit tribunal for 
the trial of alleged offences, and the temptation to use the 
power of punishment as a political weapon is one to which 
a wise people would never deliberate^ subject their legis- 
lature. But in forming the Constitution it was judged 
best to leave nothing of this sort to mere implication, and 
accordingly we have the most positive prohibitions. 
.'Bills of Attainder. — Both the United States 1 and the 
several States 2 are forbidden to pass bills of attainder. 

' Const., Art. I. § 9, cl. 3, 2 Const, Art. I. § 10, cl. 1. 



PROTECTIONS TO ACCUSED PERSONS. 311 

As known in English histoty, bills of attainder were en- 
actments of Parliament, charging persons named with 
criminal misconduct of some sort, convicting them thereof, 
and adjudging the punishment of death, with forfeiture of 
property..^ Sometimes the proceeding was resorted to be- 
cause the obnoxious persons were out of the realm, and 
therefore out of the reach of process, sometimes because 
the evidences of guilt might not be sufficient for judicial 
conviction, and sometimes because the obnoxious conduct 
had never been made criminal b}^ law, and consequently 
the person whom the authorities desired to make away with 
was not subject to punishment in any judicial proceeding. 
It was quite possible in these cases for the bill to go 
through all its stages without the accused party being al- 
lowed any opportunity whatever for a hearing ; and he 
might be denied a hearing at the will of the legislature in 
all cases. In the highest degree, therefore, such proceed- 
ings were likely to be unjust and tyrannical ; and if a pur- 
pose existed to deal fairly in an}^ particular case, the very 
organization of the tribunal rendered it practically impos- 
sible. But in most cases there was no such purpose, and 
the legislature, in passing a bill of attainder, was the tool 
of a tyrant. 1 And what might take place at the will of a 
king, under a monarchy, might also happen, at the demand 
of an excited and passionate majority, at some periods in 
the history of a republic. 

Besides bills of attainder there were also bills called 
bills of pains and penalties, which differed from the former 
only in this, that the punishments imposed were less than 
death. Many instances of these had occurred in Ameri- 
can history, particularly in the case of Americans who 
had remained loyal to the British Crown after the revolt 
of the Colonics.' 2 It is conceded on all sides, that the 

1 This was particularly true of the reign of Henry Ylll. 
a Cooper v. Telfair, 1 Pall 11. One of the New York bills of at- 
tainder not only confiscated the property of the loyalists named, but 



312 CONSTITUTIONAL LAW. 

purpose of the constitutional inhibition is to take away 
the power to pass either the one or the other ; in short, 
wholly to deprive the government of any power to inflict 
legislative punishment for criminal, or supposed criminal 
conduct. 1 And a case in which the punishment is imposed 
indirectly, as by depriving one of the right to follow his 
occupation, 2 or to institute suits, 3 unless he will take an 
oath that he has not been guilty^ of certain specified con- 
duct, is as much a bill of attainder as is an act directly 
imposing a punishment. 

Ex Post Facto Laws. — The United States 4 and the 
States, 5 alike, are also forbidden to pass ex post facto laws. 
In its natural and ordinary sense this term embraces all re- 
trospective laws ; but in the Constitution the sense is more 
restricted, and is limited exclusively to laws of a criminal 
nature. Of retrospective laws in general, therefore, there 
is no occasion to speak in this connection ; but they will 
receive some attention when the constitutional rules for 
the protection of property are given. One of the early 
justices of the Supreme Court has classified ex post facto 
laws as follows: — " 1. Every law that makes an action 
done before the passing of the law, and which was innocent 
when done, criminal, and punishes such action. 2. Every 
law that aggravates a crime, or makes it greater than it 
was when committed. 3. Ever} r law that changes the pun- 
ishment, and inflicts a greater punishment than the law 
annexed to the crime when committed. 4.„ Every law 



that alters the legal rules of evidence, and receives less or 
different testimony than the law required at the time of 

actually condemned them to death in their absence, and without 
trial. 

1 Ex parte Garland, 4 Wall. 333. Excepting, of course, such con- 
duct as may be punished under parliamentary law as contempt. 

2 Cummings v. Missouri, 4 Wall. 277. 

3 Pierce v. Carskadon, 16 Wall. 234. 
* Const, Art. I. § 9, cl. 3. 

6 Const., Art. h § 10, cl. 1. 



PROTECTIONS TO ACCUSED PERSONS. 813 

the commission of the offence, in order to convict the 
offender." 1 And to these classes may be added: — 
5. Every law which, assuming to regulate civil rights and 
remedies only, in effect imposes a penalty or the depriva- 
tion of a right for something which when done was lawful. 
And 6. Every law which deprives persons accused of 
crime of some lawful protection to which they have be- 
come entitled ; such as the protection of a former convic- 
tion or acquittal, or of a proclamation of amnesty. 2 J 

But a law is not obnoxious to this provision which 
changes the punishment by mitigating it ; 8 or which 
changes the practice in criminal cases, still preserving to 
the defendant his substantial rights ; 4 or which takes from 
him the privilege of mere technical objections ; 5 or which 
limits the number of peremptory challenges to jurors, 6 or 
modifies not unreasonably the grounds of challenge for 
cause ; "' or changes the place of trial ; 8 or permits a 
change of venue for the purposes of a fair trial. 9 Nor ia 

1 Calder v. Bull, 2 Dall. 386, 390. A law is ex post facto which 
makes the confinement of a condemned murderer solitary and gives 
the warden of the prison power to select any day within a given week 
for the execution, and to keep the knowledge of it from the prisoner, 
when previously the day was fixed by the court and the confinement 
was in a jail. Medley, Petitioner, 134 U. S. 160. So is a constitu- 
tional amendment, adopted after an offence, which alters the judicial 
rule that conviction of one grade of homicide bars a future conviction 
of a higher grade. Kring v. Missouri, 107 U. S. 221. See Garvey v. 
People, 6 Col. 559 ; Hopt v. Utah, 1 10 U. S. 574. Likewise a provision 
for a trial by eight instead of twelve jurors. Thompson v. Utah, 
170 U. S. 343. 

2 State y. Keith, 63 N. C. 140. 

8 Clarke y. State, 23 Miss. 261 ; Ratzky v. People, 29 N. Y. 124. 

4 State v. Manning, 14 Tex. 402; State v. Corson, 59 Me. 137; 
State y. Cooler, 30 S. C. 105 ; Duncan v. Missouri, 152 U. S. 377 ; Gib- 
son v. Mississippi, 162 U. S. 565. 

6 Commonwealth v. Hall, 97 Mass. 570. 

6 Dowling v. State, 13 Miss. 664. 

7 Stokes v. People, 53 N. Y. 164. 

8 Cook v. United States, 188 U. S. 157. 
• Gut v. State, 9 Wall. 35. 



314 CONSTITUTIONAL LAW. 

)t incompetent, in providing for the trial of such offences 
as may be committed in the future, to permit the punish* 
ment to be increased on proof of a previous conviction : 
though the previous conviction took place before the law ; 
for it is the subsequent offence only that is punished in 
such a case, and it was committed with constructive, if 
not actual, notice of what the punishment might be. 1 | A 
person may be extradited under a treaty, though he had 
obtained asylum in the country before the treaty was 
made." 2 And a statute declaring that no person after con- 
viction of a felony shall practise medicine is within the 
police power of the State and not ex post facto when 
enforced against a person convicted before its passage.* 

Section II. — Treason : its Definition and 
Punishment. 

The Constitution. — It is declared in the Constitution, 
that "treason against the United States shall consist only 
in levying war against them, or in adhering to their ene- 
mies, giving them aid and comfort." 4 The provision is 
taken from the Statute of Treasons, 25 Edw. III., before 
the passage of which, as the ancient common law was ad- 
ministered, it was in the breast of the judges to determine 
what conduct was treason and what not, whereby the 
creatures of tyrannical princes had opportunity to create 
abundance of constructive treasons ; that is, by forced and 
arbitrary constructions to raise offences into the crime and 
punishment of treason, which never had been suspected to 
be such. 5 The statute did not fully accomplish its purpose 
in England, as was proved by the conviction and execution 
of Algernon Sidney, whose real offence was the combating 
in argument the arbitrary doctrines which were then pop- 

i Rand v. Commonwealth, 9 Grat. (Va.) 738. 
2 In re De Giacomo, 12 Blatch. 391. 
8 Hawker v. New York, 170 U. S. 189. 

* Const., Art. III. § 3. 

* Instances are given by Blackstone, 4 Com. 75. 



PROTECTIONS TO ACCUSED PERSONS. 315 

ular at the court ; 1 but the wrongs of that arbitrary period 
had been avenged upon the perpetrators, and similar per- 
versions of law and justice were not again to be looked for 
either in England or in America. If the attempt to revive 
constructive treasons should be made, the Constitution by 
this clause provided against it as far as was possible. 

What is Treason? — \A mere conspiracy by force to sub- 
vert the established government is not treason ; but there 
must be an actual levying of war. 2 War, however, is 
levied when men are assembled with the intent of effecting 
by force a treasonable purpose ; and all persons who then 
perform any act, however minute, or however remote from 
the scene of action, and who are actually leagued in the 
general conspiracy, are to be considered traitors. 3 And 
one is adherent to the enemies of the country, and giving 
them aid and comfort, when he supplies them with intelli- 
gence, furnishes them with provisions or arms, treacher- 
ously surrenders to them a fortress and the like. 4 But 
coming from an enemy's ship to the shore peaceably to 
procure provisions for him is said not to be treason. 5 

Evidence.— ~ A conviction of treason must be on the 
testimony of at least two witnesses to the same overt act, 
or on confession in open court. Previous to the English 
statute making the like requirement, a trial for treason 
was commonly a mockery of justice. 

Section III. — The Writ of Habeas Corpus. 

The Constitution. — The right to the important writ by 
means of which the liberty of the citizen is protected 

1 Trial of Sidney, 9 State Trials, 817. 

2 Ex parte Bollman, 4 Craneh, 75. 

8 Ex parte Bollman, 4 Craneh, 75, 126. See Fries's Case, Whart. 
State Trials, 6.'U, and the voluminous report of Burr's Trial. 

4 4 Bl. Com. 76. Tf overt acts are committed, they need not ba 
successful to constitute giving aid, &c. United States v. Groathouse, 
2 Abb. U. S. 364. 

5 United States v. Pryor, 3 Wash. C. C. 234. 
• Const., Art. III. § 3. 



316 CONSTITUTIONAL LAW. 

against arbitrary arrests is not expressly declared in the 
Constitution, but it is recognized in the provision that 
" The privilege of the writ of habeas corpus shall not be 
suspended, unless when in cases of rebellion or invasion 
the public safety may require it." 1 ; This writ was the 
offspring of the common law, but its benefits and securi- 
ties were enlarged and guarded by the Habeas Corpus 
Act of Charles II., the general provisions of which are 
adopted either by recognition, or by express legislation, 
in the several States. 

Suspension of the Writ. — The privilege of the writ 
consists in this : that, when one complains that he is un- 
lawfully imprisoned or deprived of his liberty, lie shall be 
brought without delay before the proper court or magis- 
trate for an examination into the cause of his detention, 
and shall be discharged if the detention is found to be un- 
warranted. The_ suspension of the privilege consists in 
taking away this right to an immediate hearing and dis- 
charge, and in authorizing arrests and detentions without 
regular process of law. Such suspension has been many 
times declared in Great Britain, or in some section of the 
British empire, within the present century ; sometimes in 
view of threatened invasion, and sometimes when risings 
among the people had taken place or were feared, and 
when persons whose fidelity to the government was sus : 
pected, and whose influence for evil might be powerful, 
had as yet committed no overt act of which the law could 
take cognizance. It has been well said that the suspension 
of the habeas corpus is a suspension of Magna Charta, 2 
and nothing but a great national emergency could jus- 
tify or excuse it. The Constitution limits it within nar- 
rower bounds than do the legislative precedents in Great 
Britain. 

The power to suspend this privilege is a legislative 
power, and the President cannot exercise it except as au- 

1 Const., Art. I. § 9, cl. 2. 
* May, Const. Hist., ch. 11. 



PROTECTIONS TO ACCUSED PERSONS. 317 

thorized by law. 1 The suspension does not legalize what is 
done while it continues ; it merely suspends for the time 
this particular remedy. All other remedies for illegal ar- 
rests remain, and may be pursued against the parties mak- 
ing or continuing them. It is customary, after the writ 
has been suspended in Great Britain, to pass acts of indem- 
nity for the protection of those in authority, who, in the 
performance of their duties to the state, felt themselves 
warranted in arresting suspected persons while the sus- 
pension continued. Something similar has been done in 
this country by provisions in State constitutions ; 2 but as 
a right of action arising under the principles of the com- 
mon law is property as much as are tangible things, it is 
not believed the right could be destroyed by statute. 3 
{ State Suspensions. — Nothing in this provision hinders 
the States from suspending the privilege of this writ issu- 
ing from their own courts, and the declaration of martial 
law in the State has the effect of suspending it. 4 / 

Section IV. — Accusations of Crime. 

Grand Jury. — Among the other provisions which by 
the Fifth Amendment are made for the protection of per- 
sons accused of crimes is this, — that "No person shall 
be held to answer for a capital or otherwise infamous 
crime unless on a presentment or indictment of a grand 
jury, except in cases arising in the land or naval forces, 
or in the militia when in actual service in time of war or 
public danger." A grand jury is a tribunal consisting of 
not less than twelve nor more than twenty-three men, 

1 Ex parte Merry man, 9 Am. Law Reg. 524; s. c. 14 Law Rep. 
n. s. 78; Taney, 246; McCall v. McDowell, 1 Abb. U.S. 212; Ex 
parte Field, 5 Blatch. 63. 

2 See Freeland v. Williams, 131 IT. S. 405 ; Drehman v. Stifel, 8 
Wall. 595 ; Hess w. Johnson, 3 W. Va. 645. 

8 Griffin v. Wilcox, 21 Ind. 370 ; Johnson r. Jones, 44 111. 142. In 
the former case the indemnity was attempted to be given before, and 
in the latter after the act. See Milligan v. llovey, 3 Bias. 1. 

* Luther v, Borden, 7 How. 1. 



318 CONSTITUTIONAL LAW. 

taken from the body of the community, and sworn to in- 
quire into and make presentment of offences committed 
within their jurisdiction, and twelve of whom at least must 
unite in any presentment. \ The security to accused per- 
sons consists in the popular character of the tribunal, in 
the fact that they meet, receive, and sift the evidence in- 
dependently of the prosecuting authorities, and in their 
own way, and are therefore not likely to be swayed or 
influenced by the passions, desires, or interests of those 
in authority, or of malignant prosecutors. 

An infamous offence is one involving moral turpitude in 
the offender, or infamy in the punishment, or both. It is 
probable that in this amendment the punishment was in 
view as the badge of infamy rather than any element in 
the offence itself, and that provision for the punishment 
of minor offences otherwise than on indictment, even 
though they be degrading in their nature, would not be 
held unconstitutional, provided the punishment imposed 
was not greater than that usually permitted to be inflicted 
by magistrates proceeding in a summary way. But the 
punishment of the penitentiary must always be deemed 
infamous, whether at hard labor or not, and so must any 
punishment that involves the loss of civil or political 
privileges. 1 

The exceptional cases mentioned in the amendment are 
such as come under the cognizance of military or martial 
law, and are punished by military tribunals. 

Section V. — Bail. 

The Constitution. — \The Eighth Amendment forbids 
requiring excessive bail. The bail here intended is that 

1 Ex parte Wilson, 114 TJ. S. 417; Mackin v. United States, 117 
U. S. 348; United States v. De Walt, 128 U S. 393; In re Mills, 135 
U. S. 263. If when an offence was committed in a Territory a pre- 
sentment by a grand jury was necessary, the crime cannot be prose- 
cuted otherwise by the State formed from the Territory. McCarty v. 
State, 1 Wash. 377. But this clause has no application to crimes com* 
mitted abroad. In re Ross, 140 U. S. 453. 



PROTECTIONS TO ACCUSED PERSONS. 819 

which is given by persons who are accused of crime, and 
awaiting trial or final judgment, or who are held for secu- 
rity to keep the peace. 

Bail is usually allowed in all cases except those in 
which the offence charged is punished capitally or by life 
imprisonment, and even then it may be taken in the dis- 
cretion of the court. 1 That reasonable bail shall be ac- 
cepted is an admonition addressed to the judgment and 
conscience of the court or magistrate empowered to fix 
the amount : it is impossible that a definite rule shall be 
established by law for particular cases. The principle, 
however, is this : that any bail is excessive which is 
greater than is needful to secure satisfactorily the at- 
tendance of the accused for trial or sentence, or the per- 
formance of such other obligation as may have been 
required of him. 

Section VI. — Incidents of the Trial and 
Punishment. 

Venue. — One of the most valuable protections which 
the common law gave to accused persons was found in the 
principle that the trial should take place within the county 
where the alleged offence was committed. This protected 
the accused against being dragged away from his home 
and his friends for trial in such distant and perhaps hos- 
tile locality as his prosecutors might select, and it gave 
him the benefit on his trial of a good reputation if he had 
maintained one among his neighbors, and also rendered 
more probable the attendance of his witnesses, who would 
usually be found in his vicinity. A further principle, to 
which the people were even more greatly attached, was 
that the trial should be by jury. Both these were pro- 
vided for by the original Constitution, which declared that 

1 United States v. Hamilton, 3 Dall. 17; United Stales r. .Tones, 3 
Wash. C. C 224. A prisoner is not necessarily entitled to bail after 
conviction and whilo appeal is pending. MeKa.no v. Durston, 153 
U. S. 684. 



320 .CONSTITUTIONAL LAW. 

" the trial of all crimes, except in cases of impeachment, 
shall be by jury ; and such trial shall be held in the State 
where the said crimes shall have been committed ; but 
when not committed within any State, the trial shall be 
at such place or places as the Congress may by law have 
directed." 1 The Sixth Amendment made the right more 
specific, aud corrected a defect as regards the venue : 
" In all criminal prosecutions the accused shall enjoy the 
right to a speedy and public trial, by an impartial jury of 
the State aud district wherein the crime shall have been 
committed, which district shall have been previously as- 
certained by law.". The important differences in these 
provisions are, that the earlier did not require the trial to 
take place in the district of the crime, when the State was 
divided into two districts, nor did it in terms make it 
necessary that the jury should be summoned from the 
vicinage, though doubtless that was to be understood. 
The amendment says nothing about crimes committed out 
of the limits of States, and has no application to them. 2 
For the trial of such crimes Congress may provide a dif- 
ferent place from that appointed when the crime was 
committed. 3 

Speedy Trial. — A speedy trial cannot be defined more 

I accurately than this, that it is a trial brought on as 
speedily as the prosecution can reasonably be expected 
or required to be ready for it. 4 A public trial is not of 

'[ necessity one to which the whole public is admitted, but 
it is one so far open to all as that the prisoner's friends 
and others who may be inclined to watch the proceedings, 
in order to see if justice is intelligently and impartially 
administered, may have opportunity to do so. t There 

1 Const., Art. III. § 2, cl. 3/ 

2 United States v. Dawson, 15 How. 467. These provisions do not 
prevent the trial in a consular court of a crime committed by a sailor 
on an American ship lying in Japanese waters. In re Ross, 140 U. S. 
453. 

8 Cook v. United States, 138 U. S. 157. 

4 See Ex parte Stanley, 4 Nev. 113; Creston v. Nye, 74 Iowa, 369. 



PKOTECTIONS TO ACCUSED PERSONS. 321 

may be and often is justifiable occasion to exclude from 
a trial those who are inclined to attend from idle or mor- 
bid curiosity only, and especially in cases involving loath- 
some or disgusting details. 1 

The Jury. — By jury in the Constitution is meant a 
common law jury. This is a tribunal of twelve persons, 
impartially selected for the purposes of the trial in ac- 
cordance with rules of law previously established, and who 
are to sit together, hear and consider the evidence in the 
case, and render their verdict upon the facts as they find 
them. The jury cannot consist of less than twelve, and 
a trial by less than that number, even by consent, is a 
mistrial. 2 _To. secure impartiality each party is allowed 
a certain number of peremptory challenges, and as many 
others as he can show cause for. The jury listen to the 
evidence in the presence and under the direction of the 
court, and they are advised by the court what the law is 
that should govern the case. 8 Eormerly it was supposed 
that the jury might be punished if they failed to follow in 
their verdict the instructions of the court upon the law ; 
but it has long been settled that the jury may render their 
verdict freely, and without assigning reasons. 4 If the 

y 1 .People v. Kerrigan, 73 Cal. 222 ; Grimmett v. State, 22 Tex. App. 
36 ; State v. Brooks, 92 Mo. 542. 

2 Work v. State, 2 Ohio St. 296 ; Caucemi v. People, 18 N. Y. 128, 
Brown v. State, 8 Blackf. (Ind.) 561 ; Harris v. People, 128 111. 585; 
Thompson v. Utah, 170 U. S. 343. There are cases contra, especially 
as to misdemeanors. "Upon the question of the right of one charged 
with crime to waive a trial by jnry, and elect to be tried by the court, 
when there is a positive legislative enactment giving the right so to do, 
and conferring power on the court to try the accused in such a case, 
there are numerous decisions by the State courts upholding the validity 
of such decisions." Shiras, J., in llallinger v. Davis, L46 U. S. 314, 
318. See also In re Belt, L59 V. S. 95) 99, and cases cited. 

8 This matter is discussed at length in Sparf and Hansen r. United 
States, 156 U. S. 51, and the principle laid down that in the courts of 
the United States it is the duty of juries in criminal cases to take 
the law from the court, and apply it to the facts as they find them. 

4 Tenu's Case, 6 State Trials, 951 ; Bushel's Case, Vaughan's Kep. 
135 

21 



822 CONSTITUTIONAL LAW. 

accused is convicted against the law, or against the evi- 
dence, the judge may correct the error by granting a new 
trial. The verdict of the jury must be unanimous ; and 
therefore, if agreement becomes impossible, they must be 
discharged, and a new jury summoned. 

The Indictment,— The Sixth Amendment entitles the 
accused u to be informed of the nature and cause of the 
accusation." This information is to be conveyed by 
the indictment, and the accused must have a copy in 
ample time to enable him to be prepared for trial. To 
make the indictment sufficient for the purpose, it must 
contain such a recital of facts as will reasonably apprise 
the defendant what the case is which he must meet ; and 
this cannot be dispensed with even by statute. 1 , But the 
unnecessary formalities and technicalities of the old forms 
may be abolished, and no cause for complaint be given 
thereby. 2 

The Evidence. —The Fifth Amendment also declares 
that no person "shall be compelled in any criminal case 
to be a witness against himself." 3 ; This was a common 
law principle, and it has been incorporated in the Con- 
stitution to prevent the possibility of a recurrence to the 
inquisitorial proceedings which in arbitrary periods were 
sometimes had, and which are now admitted in some 
countries under systems of jurisprudence differing from 
our own. Under the laws of the United States and of 
some of the States, accused persons are permitted to give 
evidence on their own behalf; but if one elects not to 
do so, the fact is not allowed to be made use of to his 
prejudice, since, if it were, this would indirectly force 

1 State v. O'Flaherty, 7 Nev. 153; State v. Corson, 59 Me. 137. 
"No impracticable standards of particularity should be set up/' 
Evans v. United States, 153 U. S. 584; Kosen v. United States, 161 
U. S. 29. 

2 State v. Learned, 47 Me. 426; People v. Mortimer, 46 Cal. 114; 
Com. v. Ereelove, 150 Mass. 66 ; Caldwell v. Texas, 137 U. S. 692. 

3 See United States v. Boyd, 116 U. S. 616, cited at length, ante, 
p. 231. 



PEOTECTIOKS TO ACCUSED PERSONS. 323 

him to be sworn. 1 By the Sixth Amendment the accused 
has the right to be confronted with the witnesses against 
him, and to have compulsory process for obtaining wit- 
nesses in his favor. No comment need be made on this 
last privilege: the other renders it necessary that the 
prosecution procure the presence of their witnesses in 
open court, where the jury may have opportunity to 
observe them, and where full liberty of cross-examina- 
tion may be had. 2 

Counsel. — By the Sixth Amendment the accused has 
the privilege "to have the assistance of counsel for his 
defence." This is a common law privilege, much im- 
proved and extended in late years, and it is secured 
with all its accustomed incidents. The counsel must be 
at liberty to deal with the case freely, and to comment 
fearlessly upon the facts, and upon the conduct, purposes, 
and motives of prosecutors and witnesses, only keeping 
within the bounds of decorum. The -law protects impli- 
citly the confidence which the relation of counsel and 
client requires, and will not suffer the counsel, even in 
the courts of justice, to disclose the confidential com- 

1 People v. Tyler, 36 Cal. 522 ; State v. Cameron, 40 Vt. 555 ; Bird 
v. State, 50 Ga. 585 ; Wilson v. United States, 149 U. S. 60. A stat- 
ute which provides that testimony obtained from a witness shall not be 
used against him in any criminal proceeding does not deprive him of 
his privilege of refusing to testify.' Counsel man v. Hitchcock, 142 
U. S. 547. But a statute that declares that in certain classes of cases 
no one shall be excused from testifying, and furnishes complete immu- 
nity by providing that he shall not be prosecuted or subject to any 
penalty for any matter concerning which he* testifies, is good, ami the 
witness cannot, relying on this amendment, refuse to testify. Brown 
v. Walker, 161 U. S. 591. 

2 Jackson v. Commonwealth, 19 Grat. (Va.) 656 ; State v. Thomas, 
64 N. C. 74. If, on the second trial of a cause, it is found that t he 
accused has kept away a witness, his evidence given on the first trial 
may he proved l>y the prosecution. Reynolds v. United States. 98 V. S. 
145. And the same rule holds, where a witness has died since the for- 
mer trial. Mattox y. United States, 156 I 1 . S. ->o7. This clause refers 
to a prosecution which is technically criminal in its nature. I'nited 
States v. Zucker, 161 U. S. 475. 



824 CONSTITUTIONAL LAW. 

munications that may have been made to him with a 
view to pending or anticipated litigation. 1 As the jury 
in general are judges of the facts only, the argument of 
counsel upon the law should be addressed to the court; 2 
but the jury may be addressed directly, upon both law 
and fact, in those cases where by statute or constitution 
they are made judges of both. 3 

Punishments. — By the Eighth Amendment excessive 
fines and cruel and unusual punishments are forbidden. 
What punishment is suited to a specified offence must in 
general be determined by the legislature, and the case 
must be very extraordinary in which its judgment could 
be brought in question. A punishment may be unlawful 
either, 1. because it is in excess of, or different from, 
that prescribed by law ; 4 or, 2. because it is not war- 
ranted by the judgment of any competent court; and, 
possibly, 3. because, though apparently warranted by 
law, it is so manifestly out of all proportion to the 
offence as to shock the moral sense with its' barbarity, or 
because it is a punishment long disused for its cruelty 
until it has become "unusual." Nothing more definite 
can on this point be affirmed. 5 

1 Whiting v. Barney, 30 N. Y. 330. Compare Dixon v. Parmelee, 
2 Vt. 185. Communications to a State's attorney with a view to a 
prosecution are privileged. Vogel v. Gruaz, 110 U. S. 311. See, as to 
the limits of this rule, cases in Cooley, Const. Lim., 6th ed., p. 407. 

2 United States v. Morris, 1 Curt. C. C. 23 ; United States v. Riley, 
5 Blatch. 204. 

3 Lynch v. State, 9 Ind. 541. See Commonwealth v. Porter, 10 
Met. (Mass.) 263. 

* Bourne v. The King, 7 Ad. & El. 58 ; Ex parte Lange, 18 Wall. 
163. As to whether cumulative punishments are valid, see Bloom's 
Case, 53 Mich. 597 ; In re Esmond, 42 Fed. Rep. 827, and cases cited. 

5 The infliction of death by electricity is not cruel within the 
meaning of this prohibition. People v. Durston, 119 N.Y. 569 ; In re 
Kemmler, 136 U. S. 436. A punishment may perhaps be deemed 
cruel and unusual if from its nature it would be intolerable to one 
class of people, but comparatively indifferent to others; as, for ex- 
ample, the punishment of depriving a native of China of his hair. 
Ho Ah Kow v. Nunan, 5 Sawy. 552. 



PROTECTIONS TO ACCUSED PEBSONS. 325 

i Twice in Jeopardy. — The Fifth Amendment forbids 
that any person shall be subject, for the same offence, to 
be twice put in jeopardy of life or limb. This is an old 
phrase, which has come from times when sanguinary 
punishments were common; but the meaning is, that no 
person shall be put on trial a second time for the same 
offence, after he has been tried and convicted, or 
acquitted. , But some explanation is necessary, since in 
some cases one may be entitled to the benefits of an 
acquittal, though a verdict has never been returned. 

A person is in jeopardy when he is put upon trial, 
before a court of competent jurisdiction, upon an indict- 
ment or information which is sufficient in form and 
substance to sustain a conviction, and a jury has been 
impanelled and sworn to try him. 1 The accused then 
becomes entitled to a verdict that shall forever protect 
him against any future prosecution, 2 and a discharge of 
the jury without his consent is equivalent to an acquittal, 
except in the few cases in which a discharge without a 
verdict becomes a necessity. 3 

But one is not put in jeopardy by a prosecution in a 
court which has no jurisdiction of the case; 4 or upon an 
indictment which is so defective that no judgment can 
be given upon it; 5 and the jeopardy once attached is 
removed, if the jury are discharged by reason of the 
impossibility of agreement, or by consent, or if the case 
is stopped by the sickness or death of the judge, or a 

1 McFadden v. Commonwealth, 23 Perm. St. 12; O'Brian v. Com- 
monwealth, 9 Bush (Ky.), 333. So of arraignment and plea before 
a justice who has power to try the ease. Boswell v. State, 111 Ind. 47. 
8ee Cooley, Const. Lim., 6th ed. pp. 399-401, and eases cited. 

2 Barker v. People, 3 Cow. (N. Y.) 686 ; Pizafio v. State, 20 Tex. 
App. 139; Commonwealth v. Hart, 149 Mass. 7. 

8 People v. Barrett, 2 Caines (N. Y.), 304 ; Nolan r. State, 55 G& 
521. 

4 People r. Tyler, 7 Mich. 161 ; People v, FTamberg, 84 Cal. 468j 
State v. Phillips, 104 N. C. 786. 

6 Gerard v. People, 4 111.' 863 J Kohlheimer r. State, ."9 Miss. 548: 
Garvey's Case, 7 CoL 384 



326 CONSTITUTIONAL LAW. 

juror, 1 or if, after verdict of conviction, it is set aside on 
motion of the accused, or judgment upon it is reversed in 
an appellate court, or is arrested for fatal defects in the 
indictment; 2 in any of these and similar cases, the 
accused may be tried a second time. And, in general, 
whenever in the opinion of the court there is a manifest 
necessity of discharging a jury, that the ends of public 
justice may be subserved, such a step may be taken and 
a new trial ordered before another jury; 3 and the de- 
fendant is not thereby twice put in jeopardy. 4 But an 
acquittal, however erroneous, must be a bar, unless a 
remedy by writ of error is given to the State by statute, 
as has been done in some States. 5 If the accused is 
acquitted on some counts in an indictment and convicted 
on others, and the conviction is set aside, he can be put 
upon trial the second time on those counts only on 
which he was before convicted, and is forever discharged 
from the others. 6 

Due Process of Law, — The Fifth Amendment also 
provides that no person shall be deprived of life, liberty, 
or property without due process of law^/ The Fourteenth 
Amendment extends this prohibition to the States.) The 
meaning of this protection has been more fully consid- 
ered in another place; at present, it is sufficient to say 
that, as a protection to life and liberty, it requires, 
before either can be taken away under legal proceedings, 
that there shall be a prosecution according to the forms 

1 Nugent v. State, 4 Stew. & Port. (Ala.) 72; Hector v. State, 2 Mo. 
166 ; State v. Emery, 59 Vt. 84. 

2 Casborus v. People, 13 Johns. (N. Y.) 351. A trial in a higher 
court on defendant's appeal does not put him twice in jeopardy. Com- 
monwealth?;. Downing, 150 Mass. 197. 

3 Thompson v. United States, 155 U. S. 271 ; Simmons v. United 
States, 142 U. S. 148. 

4 Nor is he because a statute provides severer punishment for aeo 
ond offence than for first. Moore v. Missouri, 159 U. S. 673. 

6 State v. Tait, 22 Iowa, 140. 

6 Campbell v. State, 9 Yerg. 333 ; Barnett v. People, 54 111. 325. 



PROTECTIONS TO ACCUSED PERSONS. 327 

of law, resulting in conviction after public trial, and 
opportunity to be heard, and followed by judgment apply- 
ing the law which the convicted party violated. 

Contempts of Authority. — It sometimes becomes es- 
sential, in the course of their discharge of public duties, 
that legislative bodies and courts should punish summa- 
rily those who disturb their proceedings, or who refuse 
or neglect to perform any duty required of them in 
respect thereto. Such conduct is called a contempt of 
authority, and the power to punish it is inherent in such 
bodies. 1 But as the tribunal that punishes will also be 
the tribunal whose just authority has been contemned, 
the power is one to be exercised very sparingly, and only 
when the necessity plainly appears. When inferior 
courts punish for contempts, their records must show that 
the party is convicted of conduct which is in fact a con- 
tempt ; 2 and the conviction will be void if the rinding is 
wanting. A different rule applies in the courts of gen- 
eral jurisdiction. 3 In tribunals of all sorts and grades 
the party accused of contempt is entitled to a hearing. 4 
Bodies having quasi judicial and legislative powers, like 
boards of supervisors and city councils, cannot punish 
for contempts. 5 . 

1 Anderson v. Dunn, 6 Wheat. 204; Robinson, Ex parte, 19 WalL 
505; In re Chapman, 166 U.S. 661. But see Kilbourn v. Thompson, 
103 U. S. 168. That the rule applies to inferior courts, see In re 
Deaton, 105 N. C. 59. Compare Ex parte Kerrigan, 33 N. J. 344 ; 
Re Cooper, 32 Vt. 253. It does not extend to court commissioners 
nor notaries. Ex parte Perkins, 29 Fed. Rep. 900 ; Burtt v. Pyle, 89 
Ind.398; Puterbaugh v. Smith, 131 111. 199. 

2 Bachelder v. Moore, 42 Cal. 412; Turner v. Commonwealth, 2 
Met. (Ky.) 616. 

8 Bradley v. Fisher, 13 Wall. 335; Cuddy, Petitioner, 131 U. S. 280. 

* Ex parte Bradley, 7 Wall. 364 ; Savin', Petitiouer, 181 U. S. 267. 
But if the contempt is in the immediate presence of the court, it may 
be punished summarily without notice or opportunity for defence. Ex 
parte Terry, 128 U. S.289. 

& Whiteomb's Case, 120 Mass. 118. 



328 CONSTITUTIONAL LAW. 



CHAPTER XVI. 

PROTECTION TO CONTRACTS AND PROPERTY. 

Section I. — Laws impairing the Obligation op Con- 
tracts. 

The Constitution. — Among the powers forbidden to 
the States by the Constitution is the power to pass any law 
impairing the obligation of contracts. 1 The prohibition 
passed almost without comment at the time, and in the 
careful and very full discussions of the Federalist it is 
barely alluded to twice ; first, as a provision to prevent 
aggressions on the rights of those States whose citizens 
would be injured b\ T such laws ; 2 and, second, as being a 
" constitutional bulwark in favor of personal security and 
private rights" against laws which are "contrary to the 
first principles of the social compact, and to every princi- 
ple of sound legislation." 3 Apparently nothing was in_ 
view at the time except to prevent the repudiation of 
debts and private obligations, and the disgrace, disorders, 
and calamities that might be expected to follow. In the 
construction of this provision, however, it has become one 
of the most important, as well as one of the most compre- 
hensive, in the Constitution ; and it has been the subject 
of more frequent and more extended judicial discussion 
than an} T other. Only brief reference can be made here 
to the principles which the decisions have settled. 

i Const., Art. 1. § 10. 

2 Federalist, No. 7, instancing the then recent laws of Rhode 
Island in their results on the neighboring States. 
8 Federalist, No. 44. 



PKOTECTION TO COJSTIIACTS AND PROPERTY. 'J29 

I What is a Lavi? — The prohibition is aimed generally at 
the legislative power of the State. A state constitution is, 
therefore, a law within the meaning of this clause. 1 But 
the law need not be in the form of statute or constitution. 
It may be a municipal by-law or an enactment from what- 
ever source originating, provided the State gives it the 
force of law. 2 /And the settled judicial construction of a 
constitution or statute, as it enters into the statute or consti- 
tution, cannot be changed so as to impair the obligation of 
a contract made with reference to it. 3 But the acts of ad- 
ministrative officers are not covered by this provision, and 
a municipal ordinance which involves administrative, not 
purely legislative power, is not a law within its terms. 4 

What are Contracts ? — - Contracts are either executory 
or executed. An executory contract is one whereby a 
party takes upon himself the obligation to do or abstain 
from doing some particular thing. An executed contract 
is one whereby an obligation assumed is performed, and 
the transaction perfected ; as a deed of conveyance per- 
fects a sale of lands. The Constitution makes no distinc- 
tion between these two classes of contracts, and the latter 
as much as the former is within its protection. It is, there- 
fore, not within the power of legislation, after a convey- 
ance has been made, to annul it on any pretence ; since 
this would not merely impair the obligation of the contract; 
but would destroy it entirety. 5 
Obligation of the Contract. — The obligation, of a con- 

1 New Orleans Gas Co. v. La. Light Co.,. 115 U. S. 650; Fisk v. 
Jefferson Police Jury, 116 U. S. 131. 
' 2 Williams v. Bruffy, 96 U. S. 176. 

8 Douglass i7. Pike Co., 101 U. S. 677; Louisiana v. Pilsbury, 1C5 
U. S. 278; Ray v. Gas Co., 138 Penn. 576. Compare Wood v. Brady, 
150 U. S. 18. 

4 New Orleans Water Works v. La. Sugar Co., 125 U. 8 18; llan- 
ford v. Davies, 1G3 U. S. '27:?. 

8 Fletcher v. Pock, 6 Oraneh, 87, 183 ; Franklin School r. Bailey, 
20 Atl. Pep 820 (Vt.). A charitable trust is a contract, so that the 
State cannot change its administration without the assent of all the 
parties who created it. Cary Library c. Bliss, 151 .Mass. 364. 



830 CONSTITUTIONAL LAW. 

tract consists in its binding force on the party making it, 
which the law at the time recognizes, and for the disre- 
gard of which it gives a remedy. It involves, therefore, 
first, the promise or assurance of the party, and, second, 
the sanction of the law, whereby the promise or assurance 
becomes an effectual contract. 1 No promise or assurance 
can, therefore, constitute a contract, unless the law lends 
its sanction ; and this in some cases it withholds. For 
example, if there is no consideration for an executory 
contract, this in law is a mere nude pact, and invalid ; 
and so is any promise which is illegal, either in its con- 
sideration, or in the purpose to be accomplished by it. 2 j 

WJiat Contracts intended. — The contracts intended by 
the Constitution are all those over which the State can 
have authority^ and which, but for this provision, might 
be reached by state law. The contracts of the State it- 
self are therefore included, as much as those of individ- 
uals, and a State is thus precluded from recalling its own 
grants, as had frequently been done on various pretexts in 
England. 3 Neither can a State modif}^, except by mutual 
consent, an}' provision of a pre-existing contract into 
which it ma}^ have entered. 4 For example, if a State, 
being the owner of the capital stock of a bank, provides 
by law that its bills shall be received in payment for all 
debts owing to the State, the provision is a promise to 
those who shall receive the bills, that the^y shall be thus 
accepted for state dues ; and this promise the State can- 
not recall, to the prejudice of any who previously had be- 
come holders of the bills. 5 And the same rule applies 

1 Bronson v. Kinzie, 1 How. 311 ; McCracken v. Hayward, 2 How. 
608 ; Ogden v. Saunders, 12 Wheat. 213, 259, 302, 318. 

2 Meacham v. Dow, 32 Vt. 721 ; Piatt v. People, 29 111. 54 ; Mar- 
shall v. Railroad Co., 16 How. 314. 

3 Fletcher v. Peck, 6 Cranch, 87 ; Van Home v. Dorrance, 2 Dall. 
304; Huidekoper v. Douglas, 3 Cranch, 1. 

4 New Jersey v. Wilson, 7 Cranch, 164. 

& Woodruffs Trapnall, 10 How. 190; Furman v. Nichols, 8 Wall 
44 ; Keith v. Clark, 97 U. S. 454. 



PROTECTION TO CONTRACTS A.ND PROPERTY. 331 

where the State has issued bonds whose coupons it has 
agreed to receive for taxes. 1 So if a State, or one of its 
municipalities, contracts a debt and issues obligations 
therefor, and these obligations come into the hands of 
foreign holders who are not subject to State taxation, a 
subsequent statute imposing a tax upon them, and 
directing that the amount thereof shall be deducted in 
making payment, is void as to the foreign holders, be- 
cause withholding something to which they are enti- 
tled, and to that extent impairing the obligation of the 
contracts. 2 

Statutes. — A statute, public or private, is not a con- 
tract. ; It is an expression in due form of the will of the 
State, as to what shall be the law on the subject covered 
by it; and the State would be deprived of its sovereignty, 
and crippled in the exercise of its essential functions, 
if it were not at liberty to change its laws at discretion. 
But there are exceptions to this general rule : for a State 
may give to its contracts such form as it may choose to 
express its assent in; and this is sometimes the form of 
a statute. The grants of land by a State are fre- 
quently made by statute, and so are grants of special 
privileges. 3 Bounties are sometimes offered in this way; 
and when the terms of the offer are accepted, a contract 
exists ; but a bounty law may be repealed at any time 
as to anything that may accrue thereafter. 4 

1 Hartman v. Greenhow, 102 U. S. 672 ; Poindexter v. Greenhow, 
114 U. S. 270; McGahcy v. Virginia, 135 U. S. 662. See also Louisi- 
ana v. Jumel, 107 U. S. 711. 

2 Murray v. Charleston, 96 U. S. 432. And see State Tax on For- 
eign Held Ponds, 15 Wall. 300. 

3 A general law which is a standing offer of land becomes a con- 
tract if the offer is accepted and payment made, so that the certificate 
of sale cannot be cancelled under a new law. Pennoyer v. MeCon- 
naughy, 140 U. S. 1. See also Houston, &c. Ry. Co. v. Texas, 170 
U. S. 243. 

4 Welch v. Cook, 97 U. S. 541; IYnnie v. Reis, 132 U. S. 404; 
United States ?>. Connor, 138 U. S. 61. A statutory provision for l*v 
coming a corporation is not a contract. Sehur/. r. Cook, 14S U. S. 397. 



832 CONSTITUTIONAL LAW. 

[ 

Offices. — A public office is a public trust: the appoint- 
ment or election to it is a delegation of the trust to the 
person appointed or elected for the time being. But it 
is not a contract, and neither the office nor its emolu- 
ments can be claimed as matter of right, as against 
subsequent legislation abolishing the one or reducing 
the other. 1 Nevertheless, if in either of these particulars 
the State constitution has made provisions, it is not 
competent by law to change them, for the manifest 
reason that the constitution in that case limits the legis- 
lative power in that regard. For example, the Presi- 
dent's term of office is four years, and his compensation 
can neither be increased nor diminished during his term ; 2 
and in both these particulars the power of Congress over 
his office is excluded. ,, 

Statutory Privileges. — The grant of a statutory privi- 
lege is not a contract, but it resembles a license, and is 
always revocable, except that the party cannot be de- 
prived of benefits already enjoyed under it. Under this 
head come exemptions from military and jury duty, 
exemptions of property from taxation or from sale on 
execution, 3 and licenses to engage in any business the 
carrying on of which is not open to the general public. 4 
And in general it may be said that any privilege which 

1 Butler v. Pennsylvania, 10 How. 402; Head v. University, 19 
Wall. 526 ; Crenshaw v. United States, 134 U. S. 99 ; United States 
v. McDonald, 128 U. S. 471. But the State may make a binding con- 
tract, though an official relation is thereby created. Hall v. Wiscon- 
sin, 103 U. S. 5. And if services are rendered in an office, an implied 
contract is created to pay for them, which cannot be impaired by sub- 
sequent legislation. Fisk v. Jefferson Police Jury, 116 U. S. 131. 

2 Const., Art. II. sec. 1, § 7. 

3 Christ Church v. Philadelphia. 24 How. 300 ; East Saginaw Salt, 
&c. Co. v. East Saginaw, 13 Wall. 373 ; Shiner v. Jacobs, 62 Iowa, 392; 
Bull v. Conroe, 13 Wis. 233; Grand Lodge v. New Orleans, 166 U. S. 
143. 

* Calder v. Kirby, 5 Gray (Mass.), 597 ; Fell v. State, 42 Md. 71. 
See Beer Co. v. Massachusetts, 97 U. S. 25 ; Stone v. Mississippi, 101 
U. S. 814 ; Douglas v. Kentucky, 168 U. S. 488. . 



PBOTECTION TO CONTRACTS AND PROPERTY. 333 

is obtained under the general law of the State may be 
taken away by a repeal or modification of the law. 1 

Charter Contracts. — In the Dartmouth College Case, 
in which the legislature undertook to remodel the charter 
of an educational institution, in most important partic- 
ulars, without the consent of the corporators, it was 
decided :hat the charter was a contract, which the State 
was supposed to grant in consideration of expected 
benefits to accrue to the general public, and whereby the 
State in legal contemplation promised that the corpora- 
tors should enjoy the privileges and franchises granted. 
The conclusion was that the amendatory act was invalid, 
as impairing the obligation of the contract. 2 The same 
doctrine has been reasserted and reaffirmed in many 
cases since. 3 Of course, a total repeal of the charter 
would be a still plainer case. 

Where, however, by the charter the legislature reserves 
the right to alter, amend, or repeal it, it is plain that no 
such consequence can follow, because then an altera- 
tion, amendment, or repeal is in accordance with the 
contract, and not hostile to it. So if by the constitu- 
tion of the State, or by its general laws in force when 
the charter was granted, it is provided that all charters 
shall be subject to legislative control and alteration, 
this provision in legal effect becomes a part of the 
charter, and therefore a part of the contract. 4 

1 Beers v. Arkansas, 20 How. 527. When a charter in general 
terms authorizes a company to do things unnecessary to the main ob- 
ject of the grant, and not directly in contemplation of the parties, 
the power remaining unexercised may be treated as a license, and be 
revoked if the possible exercise of such power is found to conflict with 
public interest. Pearsall v. Great Northern Ky., 161 U. S. 047. 

2 Dartmouth College v. Woodward, 4 Wheat. 51 S. 

8 The Binghampton Bridge Case, -"> Wall. 51 ; Farrington v. Ten- 
nessee, 95 II. S. 679 ; Stone r. Mississippi, 101 l T . S. 814. 

4 Murray v. Charleston, 96 U.S. 482, 448; Railroad Co. t\ Georgia, 
98 U. S. 359 ; Railroad Companies r. Gaines, 97 l'. S. 097. So if the 
power to amend and repeal is conferred after the corporation Ls char* 



334 CONSTITUTIONAL LAW. 

Municipal Corporations. — \ A grant of rights or privi- 
leges to a municipal body or corporation" for "public" pur- 
poses is not a contract, but a law for the public good. 
Such bodies and corporations are created as necessary 
^conveniences in government, and they must hold their 
powers and privileges subject to legislative modification 
and recall at all times. Therefore the grant to a town 
of the right to establish and maintain a ferry across a 
public river may be revoked, 1 the territorial limits of the 
town may be reduced, particular powers, like the power 
to tax, or the power to buy in lands for unpaid assess- 
ments, may be taken away or changed at discretion, and 
so on. 2 ' But a municipal corporation is entitled to pro- 
tection in its property as a natural person is, whether it 
comes from the State or from any other source. 3 ) 
J' Essential Powers of Government. — A State cannot by 
: contract bargain away any of the essential powers of 
x sovereignty, so as to deprive itself of the ability to 
'. employ them again and again, as the public exigencies 
| shall seem to require. For example, it cannot by grant- 
ing land for cemetery purposes preclude itself from 
forbidding the further use of the land for those purposes 
when, by reason of the increase of population in the 
vicinity, it has become, or threatens to become, a nui- 
sance; 4 and it cannot by a railroad charter deprive itself 

tered, provided it accepts new legislative acts passed after the legisla- 
ture is given the new power. Pennsylvania P. P. Co. v. Duncan, 111 
Penn. St. 352 ; Shields v. Ohio, 95 U.S. 319. 

1 East Hartford v. Bridge Co., 10 How. 511. 

2 Barnes v. District of Columbia, 91 U. S. 540; Laramie Co. v. 
Albany Co., 92 U. S. 307 ; Williamson v. New Jersey, 130 U. S. 189; 
Essex'Board v. Skinlde, 140 U. S. 334. 

3 Town of Pawlet v. Clark, 9 Cranch, 292; Terrett v. Taylor, 9 
Cranch, 43 ; State v. Haben, 22 Wis. 660 ; Grogan v. San Francisco, 
16 Cal. 590 ; Dillon, Mun. Corp., § 39 et seq. ; Mount Hope Cemetery 
v. Boston, 158 Mass. 509. 

4 Brick Presb} T terian Church v. New York, 5 Cow. 538. See Fer- 
tilizing Co. v. Hyde Park, 97 U. S. 659. The soil under navigable 
waters is held by the people of the State in trust for the common use, 



PROTECTION TO CONTRACTS AND PROPERTY. 335 

of the power to establish reasonable regulations under 
which the railroad business shall be carried on. 1 So also 
the State cannot deprive itself of the right to appro- 
priate private property to public uses under the eminent 
domain, — this being a necessary power in government, 2 
or of the right to raise a revenue by an exercise of the 
power to tax. 

It is nevertheless held that the State may, for a consid- 
eration, impose upon itself the obligation not to tax 
certain subjects, otherwise taxable, for some definite 
period, or even indefinitely; it being presumed in that 
case that the consideration received by the State is 
jequivalent to that which might have been derived from 
jthe exercise of the customary power to tax. 8 Nor is it 
essential that the consideration shall be a direct pecu- 
niary return, or one that can be shown by evidence to be 
an equivalent; it is sufficient that the State has appar- 
ently found it for its interest to assume the obligation, 
and that some one else has acted in reliance upon it. Ir_ 
the leading case the State made a grant of lands, agree- 
ing not to tax them in the hands of the grantees ; and 
this agreement was held to be an irrevocable exemption. 4 
In other cases the State, in granting a charter of incor- 
poration, has stipulated that the taxation of the corpora- 
tion shall only be at a certain rate, or on a certain basis; 
and this also is irrevocable. 6 But an exemption from 

and as a portion of their sovereignty, and any act concerning its use 
affects the public welfare. The legislature cannot by irrepealable con- 
tract convey such property in disregard of the public trust. Illinois 
Cen. R. R. Co. v. Illinois, 146 U. S. 387. 

1 Thorpe v. Railroad Co., 27 Vt. 140; Railroad Co. v. Jacksonville. 
67 111. 37. See Butchers' Uuion Co. v. Crescent City Co., Ill I . S. 
746. 

2 Cooley, Const. Lim., 6th ed., p. 339. 

8 New Jersey v. Wilson, 7 Crunch, 104; Pacific R. R. Co. v. Ma- 
guire, 20 Wall. 36 ; University r. People, 99 l'. S. 309. 

4 New Jersey v. Wilson, 7 Cranch, 104. 

* Piqua Bank r. Knoop, 16 How, 309; Railroad Co. t\ Keid, IS 
Wall. 264 ; New Orleans r. Houston, 119 U. 8. 265. 



336 CONSTITUTIONAL LAW. 

taxation can never be granted as against a provision in 
the State constitution which requires all property to be 
uniformly taxed. 1 / And as the power to tax is vital, and 
it is of the highest importance that it should always 
remain unrestricted and in full force, the presumption 
against any intention to hamper or restrict it must be 
strong in every case, and can only be overcome by the 
employment of very clear terms to indicate that intent. 3 
And in any case an exemption from taxation, obviously 
made as a mere favor, may be terminated at the will of 
the State at any time. 3 ( In the absence of express statu- 
tory direction, or of implication by necessary construc- 
tion, provisions in a charter in restriction of the right 
of a State to regulate the affairs of a corporation or tax 

• its property do not pass to a new corporation succeeding 

' by purchase or consolidation to the property and other 
franchises of the first corporation. 4 ; 

Exclusive Privileges. — It is settled by the authorities 
that the State may grant exclusive privileges for many 
purposes; as, for example, to build a toll-bridge at a 

j certain point, to construct a toll-road between certain 
places, to establish a certain ferry, to supply water and 

; gas to a city, and the like ; and these grants, when made 
to individuals or private corporations, are contracts, 
and bind the State/^j But, as in the case of exemptions 

1 Railroad Companies v. Gaines, 97 U. S. 697. 

2 Christ Church v. Philadelphia, 24 How. 300 ; Gilman v. Sheboy- 
gan, 2 Black, 510; Chicago, &c. Ry. Co. v. Guffey, 120 U. S. 569; 
Tennessee v. Whitworth, 117 U. S. 139 ; Covington, &c. Turnpike Co 
v. Sandford, 164 U. S. 578. 

3 East Saginaw Salt, &c. Co. v. East Saginaw, 13 Wall. 373 ; Home 
Ins. Co. v. City Council, 93 U. S. 116 ; Welch v. Cook, 97 U. S. 541. 

4 Norfolk & Western R. R. Co. v. Pendleton, 156 U. S. 667; St. 
Louis & San Francisco Ry. v. Gill, 156 U. S. 649. So words in a char- 
ter granting to one corporation the privileges, etc. of another will not 
grant to the former an immunity from taxation enjoyed by the latter. 
Phoenix Insurance Co. v. Tennessee, 161 U. S. 174. 

5 New Orleans Gas Co. v. La. Light Co., 115 U. S. 650; New Or- 
leans Water Works v. Rivers, Id. 674 ; Louisville Gas Co. v. Citizens' 
Gas Co., Id. 683. Compare Stein v. Bienville Water Co., 141 U. S. 67, 



PROTECTION TO CONTRACTS AND PROPERTY. 337 

from taxation, the intent of the State to restrict oi 
hamper its power for the future is not to be lightly 
assumed, and it should appear with reasonable certainty 
in the legislation, and the grant will be strictly construed 
as against the grantees. This is reasonable, not only 
when the subject is regarded from the standpoint of 
State interest, but also because exclusive privileges are 
to some extent invidious and very justly obnoxious, and 
it is not reasonable to suppose that the State would grant 
them, except when some important public purpose or 
some necessary public convenience cannot be accom- 
plished or provided without making the grant exclusive. 
Therefore, when the owners of a franchise under State 
grant contest the rights of the State to make a second 
grant which would compete with it, every doubt must be 
resolved in favor of their claim before it can be sus- 
tained, and every resolution which springs from doubt is 
against the claim. 1 Moreover, the grant will never be 
extended by construction beyond the plain terms in 
which it is made. A familiar instance is where the 
owners of a ferry franchise, or of a franchise to take toll 
for passing over a bridge, contest the right of the State 
to grant a second franchise, the enjoyment of which 
would diminish their own profits. As against them, 
the presumption is that the State retained the right to 
license as many crossings as should be found needful or 
desirable. 2 

But even the agreement of the State that the grant 
shall be exclusive cannot prevent the making of another, 
subject to the obligation to provide compensation, under 
the principles governing the law of eminent domain. 

1 Pennsylvania R. R. Co. v. Canal Commissioners, 21 Perm. St. 9, 
22. See the discussions in Fertilizing Co. o. Hyde Park, '.'7 V. S. 659, 
and in Hamilton Gas Light Co. v. Hamilton City, 146 (J. S. 258. 

2 Charles River Bridge v. Warren Bridge, u Pet, 420 ; Turnpike 
Co. v. State, 3 Wall. 210; Wheeling, &c. Co. v. Wheeling Bridge Co., 
138 1/ S. 287; Rockland W. Co. v. Camden, &c, Co., so Me. 544. 

22 



338 CONSTITUTIONAL LAW. 

An exclusive privilege only gives to the franchise addi- 
tional value as property; and all property is subject to 
be taken and appropriated to public uses on making pay- 
ment therefor. Therefore, notwithstanding the exist- 
ence of an exclusive grant to construct a railroad 
between two named places, or a bridge over a river at a 
certain locality, the State has, and must have, the power 
to make conflicting grants when the public needs seem 
to require them ; and the progress of the State could or 
might be embarrassed or stayed by improvident or dis- 
honest State concessions if this were otherwise. 1 The 
new grant in such case does not impair the obligation 
of the other, but the obligation is recognized in giving 
compensation for the exclusive privilege. 

Police Regulations : General Principle. — All property 
and all rights within the jurisdiction of a State are sub- 
ject to the regulations and restraints of its police power, 
except so far as they are removed therefrom by the ex- 
press provisions or implications of the Federal Constitu- 
tion. 2 The police power may be defined in general 
terms as that power which inheres in the legislature to 
make, ordain, and establish all manner of reasonable 
regulations and laws whereby to preserve the peace and 
order of society and the safety of its members, *and to 
prescribe the mode and manner in which every one 
may so use and enjoy that which is his own as not to 
preclude a corresponding use and enjoyment of their own 
by others. 3 

Interference with Federal Powers. — In a preceding 

1 West Eiver Bridge Co. v. Dix, 6 How. 507 ; Eastern R. R. Co. v. 
Boston, &c. R. R. Co., Ill Mass. 125 ; Alabama, &c. R. R. Co. v. Kenny, 
39 Ala. 307; Long Island Water Supply Co. v. Brooklyn, 166 U. S. 
685. 

2 United States v. De Witt, 9 Wall. 41 ; United States v. Reese, 92 
U. S. 214 ; Mugler v. Kansas, 123 U. S. 623; Giozza v. Tiernan, 148 
U. S. 657. 

3 License Cases, 5 How. 504 ; License Tax Cases, 5 Wall. 462 ; Munn 
v. Illinois, 94 U. S. 113, 124; Barbier v. Connolly, 113 U. S. 31. 



PROTECTION TO CONTRACTS AND PROPERTY. 339 

chapter cases have been mentioned in which attempts by 
the States to exercise this power have been held invalid, 
because they interfered with the proper exercise by Con- 
gress of its power in the regulation of commerce. 1 More 
often State regulations have been questioned on the 
ground that, under the pretence of regulation, they took 
away rights which were promised and assured by con- 
tract, and thereby impaired the obligation of the contract. 
Regulation of Charter Contracts. — It is not ques- 
tioned that all contract rights are subject to State regu- 
lation, as all property is. Therefore, though a railroad 
company has a charter not subject to amendment or 
repeal by the legislature, it takes it nevertheless subject 
to such changes as may be made in the general laws and 
constitution, unless as to the subject-matter involved 
the charter constitutes a contract exempting the corpora- 
tion from the operation of such legislation. 2 And in the 
conduct of business under the charter, the company 
must conform to such rules and regulations as the State 
may establish for the safety and protection of those 
being carried by or having transactions with it. There- 
fore the company may be required to fence its track as a 
proper precaution, as w r ell against the trains being 
thrown from the track, as against the destruction or loss 
of cattle, 3 and to fix periodically its charges and keep them 
posted for the information of the public. 4 The follow- 
ing are also reasonable regulations: requiring all trains 
to check their speed at exposed places; 5 to carry impar- 

1 Ante, pp. 69-79. 

2 Pennsylvania R. R. Co. v. Miller, 132 U. S. 75. Here after the 
charter was granted, which gave power to condemn land, a constitu- 
tional amendment provided that compensation should be made for in- 
jury caused in the course of public improvements to land not actually 
taken for public use, and it, was held applicable to the corporation. 

a Thorpe y. Railroad Co., 27 Vt. 140. 
4 Railroad Co. ». Fuller, 17 Wall. 560. 

* Chicago, &c. R. R. Co. v, Haggerty, 67 111. 113; Haas r. Railroad 
Co., 41 Wis. 44; Pennsylvania R. R. Go. v. Lewis, 79 Penn. St 3$. 



340 CONSTITUTIONAL LAW. 

tially for all persons ; * to permit other roads to cross the 
railroad track, and to share with them the expense of the 
crossing ; 2 to ring a bell or sound a whistle at crossings, 
or to station a flagman at such, or any other dangerous 
places ; 3 to respond in damages in case the death of any 
person shall be caused by the company's wrongful act, 
neglect, or default; 4 and so on. | A charter, then is to 
be deemed granted upon condition that the corporation 
shall be subject to such reasonable regulations as to the 
conduct of its business as the legislature may prescribe, 
provided they do not materially interfere with the enjoy- 
ment of its privileges, and only serve to secure the ends 
for which it is organized. 5 On the other hand, if the 
regulation assumes to take from the company some sub- 
stantial right which its charter confers, it will be void. 
Instances are, the taking away a right to exact toll, 
which had been clearly given ; 6 imposing upon the com- 
pany new liabilities for something it was expressly per- 
mitted to do; 7 and so on. 8 iThe limit to the exercise of 
the police power over charter contracts is substantially 
this : the regulations must have reference to the comfort, 
safety, or welfare of society ; they must not be in con- 
flict with any of the provisions of the charter, and they 

1 Chicago, &c. R. R. Co. v. People, 67 111. 11. 

2 Fitchburg, &c. R. R. Co. v. Grand Junction R. R. Co., 1 Allen 
(Mass.), 552. 

3 Toledo, &c. R. R. Co. v. Jacksonville, 67 111. 37. 

4 Steamboat Co. v. Barclay, 30 Ala. 120; Boston, &c. R. R. Co. v. 
State, 32 N. H. 215. 

5 Chicago Life Ins. Co. v. Needles, 113 U. S. 574; Baltimore v. Bal- 
timore Trust Co., 166 U. S. 673 ; Eagle Ins. Co. v. Ohio, 153 U. S. 446. 

6 Pingrey v. Washburn, 1 Aik. (Vt.) 264. . 

7 People v. Plank Road Co., 9 Mich. 285 ; Bailey v. Railroad Co., 4 
Harr. (Del.) 389. 

8 See Washington Bridge Co. v. State, 18 Conn. 53; Philadelphia, 
&c. R. R. Co. v. Bowers, 4 Hous. (Del.) 506. A railroad company 
cannot forty years after its construction be compelled to put in at its 
own cost residence crossings for adjoining proprietors. People v. Ry. 
Co., 79 Mich. 471. Compare N. Y. & N. E. R. R. Co. v. Bristol, 151 
U. S. 556. 



PROTECTION TO CONTRACTS AND PROPERTY. 341 

must not, under the pretence of regulation, take from 
the corporation any of the essential rights and privileges 
which the charter confers. In short, they must be regu- 
lations in fact, and not amendments of the charter in 
abridgment of the corporate franchises. 1 Yet under the 
settled rule that u the legislature cannot bargain away 
the public health or the public morals," the State may in 
the exercise of its police power take away the right to 
carry on a business which in its judgment endangers pub- 
lic health or morals, although the business is done by a 
corporation chartered for that purpose. 2 / And where the 
charter reserves to the legislature the power to alter, 
amend, or repeal it, or where it is granted under a State 
constitution which expressly saves to the legislature 
that right, any change whatever in the contract by legis- 
lative power is no impairment of the contract. 3 A legis- 
lature having such a power may therefore exercise 
control over the charges of railroad companies, 4 though 

1 Cooley, Const. Lira., 6th ed., 710, and cases cited. See Beer Co. 
v. Massachusetts, 97 U. S. 25. 

2 Beer Co. v. Massachusetts, 97 U. S. 25 ; Fertilizing Co. v. Hyde 
Park, 97 U. S. 659; Stone v. Mississippi, 101 U. S. 814; Butchers' 
Union Co. v. Crescent City Co., Ill U. S. 746 ; New Orleans Gas Co. 
v. La. Light Co., 115 U. S. 650; Douglas v. Kentucky, 168 U. S. 488. 

3 See the right of amendment with its limitations considered in 
Sinking Fund Cases, 99 U. S. 700. In Greenwood v. Freight Co., 105 
U. S. 13, the legislature granted, upon compensation made, the fran- 
chises of one corporation to another. In Spring Valley Water Works 
v. Schottler, 110 U. S. 347, a pre-existing right of a company to have 
a voice in fixing its rates for service was taken away. See also Sioux 
City Ry. Co. v. Sioux City, 138 U. S. 98; Hamilton Gas Light Co. v. 
Hamilton City, 146 U. S. 258. 

4 Chicago, &c. R. 11. Co. v. Iowa, 94 U. S. 155. This principle has 
been applied even to cases where the power to amend and repeal had 
not heen expressly reserved, and where power was given to the com- 
pany by its charter to fix its rates. Railroad Commission Cases, 
116 U. S. 307; Georgia Banking Co. v. Smith, L28 l. S. 174. " A grant 
in general terms of authority to fix rates is not a renunciation of the 
right of .legislative control so as to secure reasonable rates. ... It is only 
where there is an unmistakable manifestation of a purpose to place the 
unrestricted right in the corporation to determine rates . . . that the 



342 CONSTITUTIONAL LAW. 

it cannot fix rates or empower a commission to do so 
finally without opportunity for a judicial hearing on the 
question of their reasonableness. 1 

Miscellaneous Cases. — Some police regulations have 
been contested, as amounting to a virtual destruction of 
property; for example, those prohibiting the sale of 
spirituous or malt liquors as a beverage, and those estab- 
lishing limits in cities within which buildings of wood 
shall not be constructed or repaired. But there is no 
doubt that the legislature in its discretion may establish 
such regulations. 2 

Implied Contracts. — Implied contracts, as well as 
those made in express terms, are within the protection 
xrfL±ha_ Constitution. 3 Under this head may be classed 
judgments and decrees, and all statutory liens and rights 
of redemption when they spring from or originate in con- 
tracts, and are in accordance with the law when the con- 
tract was made. 4 / 

State Control of Remedies. — What is said further on 
respecting the control of remedies by the State is appli- 
cable as well to contracts as to other rights. ' But the 
State must always give some remedy, and it must "be 
substantially the equivalent of that which was provided 
_by_law when the contract was made. The withdrawal of 
the remedy for a time by stay laws is an impairment of 
the obligation of contracts. 5 So is any law which, under 

power ... to interfere can be denied." Stone v. Yazoo, &c. R. R. Co., 
62 Miss. 607. But the State cannot control the rates charged for inter- 
state carriage. Wabash, &c. Ry. Co. v. Illinois, 118 U. S. 557. 

1 Chicago, &c. Ry. Co. v. Minnesota, 13-t U. S. 418; Covington, &c. 
Turnpike Co. v. Sandford, 164 U. S. 578; Smyth v. Ames, 169 U. S. 
466; and see ante, p. 261. 

2 License Cases, 5 How. 504; Mugler v. Kansas, 123 U. S. 623; 
Commonwealth v. Intoxicating Liquors, 115 Mass. 153 ; Insurance Co. 
v. Brown, 11 Mich. 265. See Transportation Co. v. Chicago, 99 U. S. 
635. 

8 Fisk v. Jefferson Police Jury, 116 IT. S. 131. 

* Gunn v. Barry, 15 Wall. 610. 

6 Cooley, Const. Lim., 6th ed., p. 354, and cases cited. 



PKOTECTION TO CONTEACTS AND PROPERTY. 343 

the pretence of changing the remedy, undertakes to 
compel the party to accept something different in the 
place of that for which he contracted; as, for example, 
land at an appraisal in the place of money. 1 So is any 
law which gives a preference in payment of one creditor 
over another, which the law when their contracts were 
made did not give, even though the preferred creditor is 
the State itself. 2 So is any law which takes away from 
the creditor any substantial right which the contract 
assured to him ; for example, the right to the possession 
of mortgaged lands until the mortgage debt is paid. 3 So 
is any law which so far increases the exemptions from 
executions issued on judgments as seriously to impair 
the value of the remedy, and reduce the probabilities of 
collection. 4 Even the power to tax may sometimes be- 
come an important element in the obligation of a con- 
tract. Thus, if a city contracts debts at a time when it 
has by law ample power to levy taxes for their payment, 
the creditor has a right to rely upon this power as the 
means by the employment of which his debt shall be 
satisfied, and the State cannot afterwards withdraw the 
power or so restrict it as to render payment by means 
thereof impossible, and an act for that purpose would be 
inoperative as to existing debts. 5 

Reasonable limitation laws a State may always pass, 
and make them applicable to existing contracts. 6 So the 

1 Mc.Cracken v. Hay ward, 2 How. 608. 

2 Barings v. Dabney, 19 Wall. 1. 

3 Mundy v. Monroe, 1 Mich. 68. Or the right to apply the coupons 
of State obligations in payment of State taxes. Foindexter v. Green- 
how, 114 U. S. 270, and cases cited. 

4 Gunn v. Barry, 15 Wall. 610. Time of redemption cannot bo 
shortened or lengthened after tax sale. Hull v. State, 29 Fla. 79. 
See also Cooley, Const. Lira., 6th ed., 353. 

& Von Hoffman v. Quincy, 4 Wall. 535; Galena v. Amy. 5 Wall. 
705; Broughton v. Pensacola, 93 U. S. 206; Nelson r. St Martin's 
Parish, in U. S. 716. 

< ; Bell v. Morrison, 1 Pet. 351 ; Terry v. Anderson. 95 l\ S. 628; 
and may reduce the rate of interest on judgments obtained before tlio 
passage of the act. Morley v. Lake Shore Ky. Co., 146 U. S. 162. 



344 CONSTITUTIONAL LAW. 

State may make and enforce insolvent laws when then 
is no national bankrupt law in existence, and under 
these may discharge debtors from further liability on 
their contracts on such terms and conditions as shall be 
reasonable. But such laws can only be applied to con- 
tracts subsequently made within the State, and between 
residents thereof. 1 

Contracts of Guaranty. — Contracts of suretyship or 
of secondary liability are as much within the protection 
of the Constitution as are the principal contracts which 
they secure, or on which they depend. Th erefore, w here 
the law makes stockholders in a corporation liable for 
the corporate debts, the liability, so faj.^a^_existing^_ebts 
are concerned, is one which cannot be taken away or 
reduced by a change in the law. 2 \ But penalties imposed 
by statute may be released by statute at any time before 
they are actually recovered. 3 

Objectionable Considerations. — The fact that a con- 
tract had its origin in a consideration now recognized 
as immoral and insufficient is immaterial, provided it 
was sufficient under the law at the time. Therefore, 
contracts for the purchase price of slaves were enforced 
after emancipation, notwithstanding the State by its 
constitution had provided that they should not be; the 
States having no more power to impair the obligation 
of a contract by constitutional provision than by any 
other law. 4 / 

> Adding to Contracts. — It is as incompetent to import 
new terms into a contract as it is to take away or detract 
from the force of those already there. . But this point 
will receive some attention hereafter. 

1 Ogden v. Saunders, 12 Wheat. 273; Baldwin v. Hale, 1 Wall. 223; 
Carbee v. Mason, 64 N. H. 10. 

2 Ochiltree v. Railroad Co., 21 Wall. 249. 

3 Confiscation Cases, 7 Wall. 454; United States v. Tynen, 11 
Wall. 88. 

4 White v. Hart, 13 Wall. 646. See Delmar v. Insurance Co., 14 
Wall. 661 ; Marsh v. Burroughs, 1 Woods, 463; Swain v. Seamans, 9 
Wall. 254. 



PROTECTION TO CONTRACTS AND PROPERTY. 845 

Is Congress restrained? — That Congress should not 
have been prohibited from impairing the obligation of 
contracts, as the States were, may well excite some sur- 
prise. It was certainly never intended that Congress 
under any circumstances should exercise that tyrannical 
power, and it probably never occurred to any one as 
possible that it would ever attempt to do so. While, if 
it should attempt it, in the case of private contracts, the 
act, it would seem, might well be held not to be legiti- 
mate legislation, and therefore incompetent and void, 1 
yet the clause is considered not to apply to congressional 
legislation. 2 In respect to contracts by the government 
itself, so long as they remain executory, if it shall 
choose not to perform them, there can be no redress. A 
government cannot be compelled to pay its debts against 
its will by any process short of war or of forcible re- 
prisal. And Congress may indirectly impair the obliga- 
tion of private contracts, through its power to debase 
the currency and to establish and change the law of 
tender, as it did to some extent in the act making 
treasury notes a lawful tender in payment of pre-existing 
debts. For such wrongs only the political remedies can 
be available. 

Section II. — Protection to Property. 



The Constitution. — The Fifth Amendment to the 
Constitution provides that no person shall be deprived 
of property without due process of law. This provision 
is a restraint upon the Federal powers only. The Four- 
teenth Amendment supplements this by providing that 
no State shall deprive any person of property without due 
process of law. 

What is Property? — That is property which is recog- 
nized as such by the law, and nothing else is or can be 

1 See opinion in Gunn r. Barry, l"> Wall. 610. 

2 Mitchell v. Murnhy, no U. 8. 633. 



846 CONSTITUTIONAL LAW. 

"Property and law are born and must die together. Be- 
fore the laws, there was no property ; take away the laws, 
all property ceases." x In America the law which deter- 
mines what is property is for the most part the common 
or customary law, though to this some additions are made 
by statute. Whatever a man produces by the labor of 
his hand or his brain, whatever he obtains in exchange 
for something of his own, and whatever is given to 
him, the law will protect him in the use, enjoyment, and 
disposition of. The wild beast is the property of him 
who captures and subdues it, provided he keeps it sub- 
jected to his dominion; game belongs to him who slays it, 
and so on. The natural increase of domestic animals is 
the property of the owner of the mother, and the natural 
productions of the soil, as well as the crops produced by 
the labor of man, belong to him who owns the soil. And 
the right to continue the practice of the learned profes- 
sions is property which cannot arbitrarily be taken # 
away. 2 

When an article either intrinsically or by the use to 
which it is put becomes prejudicial, the law may with- 
draw from it the attribute of property, and then any one 
may be at liberty to destroy it. When anything becomes 
a nuisance the party incommoded may destroy it if the 
nuisance cannot otherwise be abated ; and if the public 
are incommoded, the right to abate is general. Some- 
times things are declared nuisances by law because of 
their injurious influence upon the morals of the commu- 
nity ; as, for example, lottery tickets when kept for sale, 
the implements by means of which games of chance are 
played, when kept for gambling, and intoxicating liquors 
when offered for sale in violation of law. But when the 
wrong consists solely in the use to which an article, not 
a nuisance in itself, is put, the owner's property in it 

1 Bentham, Principles of the Civil Code, ch. 8. 

2 Dent v. West Virginia, 129 U. S. 114. See Hawker v. New York, 

no u. s. 189. 



PROTECTION TO CONTRACTS AND PROPERTY. 347 

cannot be taken away until it has been judicially deter- 
mined that a breach of the law has been committed. 1 
A private citizen cannot determine for himself that a 
property right in some other person has been forfeited by 
disobedience of law. 2 

Who restrained. — The prohibitions of the Constitu- 
tion apply to all departments of government, and to all 
private citizens. The executive must of course always 
show authority of law for his action: and when this is 
out of his power, what he does cannot be by due process 
of law. All ministerial officers must show warrant for 
everything they assume to do in apparent disturbance of 
the rights of others. The judiciary, from the highest 
courts to the lowest, must exercise its authority within 
the limits permitted by law, or it will act without juris- 
diction, and therefore without due process. 
( The validity of judicial action is tested by the one 
question, Was it clone with jurisdiction? Jurisdiction 
is commonly said to be, first, of the subject-matter, and, 
second, of the persons concerned. The former divides 
itself into territorial and subjective. Every court has 
its territorial jurisdiction assigned to it by law, and its 
process is inoperative outside the prescribed limits. 
And within those limits the court may take cognizance of 
such causes of action as may be committed to it by law, 
and by the acts of parties having a right to bring suit ,'J 
For example, the Circuit Court of the United States for 

1 The Supreme Court of the United Stales and the Supremo Courts 
of several of the States have upheld laws providing for the summary 
destruction of property of little value, where its use was unlawful and 
its destruction necessary to effect the object of the statute. Lawton r. f 
Steele, L&2 U. S. 133. The statement of the text seems to he settled 
law where the property is of considerable value. Dunn v. Burleigh, 
62 Me. 24. 

2 Fisher v. McGirr, 1 dray (Mass.), 1. Under no circumstances 
can a State take private property of one person and give it to another 
for his private use, as was attempted by a law requiring a railroad 
company to grant a location l\>r an elevator on its right of way. Mi* 
Bouri Pac. Ry. v. Nebraska, 164 U. S. 403. 



348 CONSTITUTIONAL LAW. 

the District of Delaware has a territorial jurisdiction 
within that State only; but to ascertain what may be 
the subject-matter of a suit in that court, it is necessary 
to consult the Constitution and the laws of the United 
States, and sometimes also the common law. tThe Con- 
stitution prescribes to what cases the jurisdiction may 
be extended ; the laws of Congress extend it to all these 
cases, or to less than all, as shall be deemed wise; but 
these laws are made with those common law principles in 
view which determine what causes of action are local, and 
what are transitory. Thus, the Constitution permits a 
citizen of another State to sue a citizen of Delaware 
in the United States courts ; the law of Congress author- 
izes the suit to be brought in the United States Circuit 
Court only when the amount or value in controversy 
exceeds five hundred dollars. But if the matter in dis- 
pute was the recovery of possession of land in another 
State, it could not be brought in Delaware, because such 
an action is local, and must be brought where the land 
is ; while if it was the recovery of the amount of a promis- 
sory note, it would be immaterial where the right of ac- 
tion arose, as such an action is always transitory; by 
which is meant, that it may be brought wherever service 
can be obtained, if the local law permits. 

Consent can never confer jursidiction of the subject- 
matter of suits. 1 Courts are created and their jurisdic- 
tion limited and defined, on considerations of general 
public policy, and parties cannot be suffered of their 
own discretion to modify and enlarge these limits. 
Therefore, where a court by law has no authority to take 
cognizance of a particular subject-matter in controversy, 
if it shall proceed to do so either party to the controversy 
may repudiate its action at any stage of the proceedings,, 
and refuse to be bound by them; and his previous con- 

1 Mordecai v. Lindsay, 19 How. 199 ; Montgomery v. Anderson, 21 
How. 386; Coffin v. Tracy, 3 Caines (N. Y.), 128; Preston v. Boston, 
IS Pick. (Maw.) 7 ; Green v Collins, 6 Ired. (N. C) 139. 



PROTECTION TO CONTRACTS AND PROPERTY. 849 

sent to them, however formal, can never be an impedi- 
ment to his rejecting them. 1 This is the conclusive 
reason why divorces obtained collusively by citizens of 
one State in the tribunals of another are wholly inopera- 
tive and null ; for no court of one State can take cogni- 
zance of the domestic relations of another with a view 
to their dissolution. 2 
f Jurisdiction of the persons of litigants is acquired by 
courts in the following ways: — 1. Of the plaintiff, by 
his voluntary institution of suit; and, 2. Of the defend- 
ant, by his being served with legal process at the com- 
mencement of suit, or by his voluntary appearance in 
suit without process, or after irregular service of process. 
This jurisdiction may always be given to courts by 
consent of the party, provided the subject-matter of the 
controversy is within their jurisdiction. 

Some cases are said to proceed in rem, because the 
process which begins them is served upon the thing which 
is the subject of controversy, instead of upon parties, 
and the pleadings and other proceedings take notice of 
the thing in litigation, and not of those interested in it. 
The law or the practice of the court may require notice 
to be given in some form to the parties concerned before 
final judgment, but the jurisdiction is obtained by the 
original seizure or service. 

Irregularities in Judicial Action. — When a court has 
acquired jurisdiction, it may nevertheless exercise it 
irregularly. An irregularity consists in the failure to 
observe that particular course of proceeding which, con- 
formably to the practice of the court, ought to have boon 
.- observed in the case. It is a general rule that, while a 
want of jurisdiction renders the proceedings of a court 

1 Bostwick v. Perkins, 4 Ga. 47 ; Giuu v. Rogers, 9 111. 131 ; White 
v. Buchanan, 6 Cold. (Tonn.) .'S2. 

2 Cheever v. Wilson, 9 Wall. 108 ; Hoffman v. Hoffman, 46 N. V. 
30; People v. Dawell, 25 Mich. 247 ; Leith r. Leith, 39 N. 11. 20. Seo 
Cooley, Const. Lim., 6th ed., pp. 494, 495 and cases cited. 



850 CONSTITUTIONAL LAW. 

void, an irregularity only subjects them to be avoided on 
a direct proceeding instituted for the purpose. 1 The 
proper proceeding is either, — 1. An applicatipn .to^he 
court in which the irregularity occurred, to set aside all 
action based upon or affected by it; or, 2. The removal 
of the case to some appellate court or jurisdiction for the 
correction of the error as right and justice may require. 
But an irregular step cannot be taken advantage of in 
a collateral proceeding, but must be considered valid, 
while a want of jurisdiction may always be inquired into, 
and the enforcement of a judgment obtained without 
jurisdiction can never be due process of law. 

Divesting Rights by Legislation. — The_„legislature 
makes the laws, but cannot pass judgments or decrees, 
or make a law that is such in substance.' 2 It must 
"govern by promulgated, established laws, not to be 
varied in particular cases, but to have one rule for rich 
and poor, for the favorite at court and the countryman 
at plough." 3 Nevertheless the general laws of the State 
may make different regulations for different kinds of 
business, and prescribe different rules for the different 
classes of people who compose the State. The rules of 
civil capacity and criminal responsibility are justly and 
properly made for different classes of people; for minors 
and adults, for males and females, for the sound in mind 
and the insane, for those engaged in hazardous employ- 
ments and those who are not, and so on. If an emplo3 T - 
ment is one which concerns the general public, and 
requires for its proper usefulness that it should have the 
unhesitating confidence of the public, — as in the cases 
of bankers and carriers of passengers, — it may be propei 

1 TVhite v. Crow, 110 IT. S. 183 ; Weiss v. Guerineau, 109 Ind. 438 ; 
Levan v. Millholland, 114 Perm. St. 49. 

2 Tyson v. School Directors, 51 Penn. St. 9; Gaiues v. Buford, 1 
Dana (Ky.), 481. 

3 Locke on Civil Government, § 142; Griffin v. Cunningham, 2P 
Grat. (Ya.) 31. 



PEOTECTION TO CONTEACTS AND PEOPEKTY. 351 

that special and even severe regulations be established to 
prevent the confidence being abused, and to insure that 
the public reliance shall be justified. To compel the 
observance of these under penalties is neither unjust 
nor unconstitutional. 1 

Vested Rights. — The test of unlawful interference 
with property is that vested rights are abridged or taken 
away. Rights are vested, in contradistinction to being 
expectant or contingent. They are vested when the 
right to enjoyment, present or prospective, has become 
the property of some particular person or persons as a 
present interest. 2 They 'are expectant, when they depend 
upon the continued existence of a present condition of 
things until the happening of some future event. The y 
are contingent, when they are only to come into exist- 
ence on an event or condition which may not happen or 
be performed until some other event may prevent their 
vesting. 

Eights in Expectation. — The man who to-day erects 
buildings and puts in them machinery for the manufac- 
ture of some important article of common consumption, 
on the importation of which the law imposes a tariff 
duty which is practically prohibitory, may expect that 
this will continue in force, and that he will in conse- 
quence reap large profits from his manufactory. But he 
has no vested right in the general laws of his country 
which entitles him to insist that any one of them shall 
remain unchanged for his benefit; 3 and if the duty shall 

1 See Hawker v. New York, 170 U. S. 189. 

2 For example, as to public lands, a purchaser has no vested interest 
till he has done everything required by law to be done by him to com- 
plete his title. Campbell v. Wade, 132 U. S. 34. 

8 "A person has no property, no vested interest, in any rnlc of the 
common law. . . . Bights of property, which have been created by the 
common law, cannot be taken away without due process ; but the law 
itself as a rule of conduct may be changed at the will, or even at the 
whim, of the legislature, unless prevented by constitutional limita- 
tions." Muuu v. Illinois, 94 U. S. 113, 134. 



352 CONSTITUTIONAL LAW. 

be removed, and his property rendered worthless in con. 
sequence, he is nevertheless deprived of no right. A\\ 
statutory privileges depend upon this principle, and they 
may be taken away by changes in the general laws at 
any time. The privilege of exemption from arrest, ex- 
emption from taxation, exemption of property from 
forced sale on execution, and exemption from jury duty ? 
are all within the principle. Even an exemption from 
military duty, granted by the law after full performance 
of duty for some previously fixed period, may be with- 
drawn when the exigencies of the State appear to re- 
quire it. 1 . 

So the rules of descent may be changed in the legisla-, 
tive discretion, though thereby the expectations of living 
persons under the previous laws are disappointed. The 
living have no heirs, and the laws which provide who 
shall be their heirs in the event of their death are only 
expressive of present views of what is best, and may be 
changed as these views change; and no vested rights 
can be impaired, since no rights under these laws can 
vest while the owner of the estate is living,. The 
expectation is not property ; it cannot be sold or mort- 
gaged; it is not subject to debts; and it is not in any 
manner taken notice of by the law until the moment of 
the owner's death, when the statute of descents as it 
then exists comes in, and for reasons of general public 
policy passes the estate to persons standing in certain 
degrees of relationship to the deceased, in preference to 
all others. It is not until that moment that there is any 
vested right in the person who becomes heir. 2 

So qualities annexed to estates, and to affect their 
enjoyment in the future, may be changed when the 
interests of the owners are not rendered less beneficial. 
Estates tail may be changed into estates in fee simple, 

1 Commonwealth v. Bird, 12 Mass. 443 ; Swindle v. Brooks, 34 Ga. 
67 ; Murphy «. People, 37 111. 447 ; State v. Wright, 53 Me. 328. 

2 Cooley, Const. Lim., 6th ed., 439. 



PKOTECTION TO CONTEACTS AND PEOPEETY. 35S 

estates in joint tenancy into estates in common. 1 So 
the expectant right of the husband to an estate by the 
curtesy in his wife's lands may be taken away by general 
legislation at any time before it has become initiate 
by the birth of living issue of the marriage, 2 and the 
expectant right of the wife to dower in her husband's 
lands at any time before it has passed from the condi- 
tion of expectancy and become perfected by the hus- 
band's death. 3 The marriage gives no vested right in 
either of these cases. 

Trust Interests. -4 Where one holds property for 
another, the vested right which the law regards is not 
that of the trustee, but of the beneficiary, [t is a per- 
fectly legitimate exercise of legislative power to convert 
equitable estates into legal, thereby wholly divesting the 
trustee of his legal ownership.. The Statute of Uses 4 had 
this for its main purpose, and its general features have 
been re-enacted in many States of the Union, and recog- 
nized by judicial decision in others. Trusts arising by 
construction of law to prevent frauds are subject to a like 
legislative control, but with this limitation: that, as the 
legislature cannot adjudge that a fraud has been com- 
mitted, the supposed trustee, if he claims the property, 
must have a right to a judicial hearing upon his claim be- 
fore he can be dispossessed. And as between those who 
claim adversely as beneficiaries the legislature can never 
decide, but they must be left to litigate their conflicting 
claims in the courts. 5 

1 Ilolbrook v. Finney, 4 Mass. 465; Burghardt v. Turner, 12 Pick. 
(Mass.) 534. See Comstock v. Gay, 51 Conn. 45. 

2 Breeding y. Davis, 77 Va. G39 ; Ilathon v. Lyon, 2 Mich. 03. A 
statute declaring that profits from the wife's property should not be 
Subject to the husband's debts, is valid as far as it affects future rents 
and profits. Baker's Executors v. Kilgore, 145 V. S. 4S7. 

3 Lucas v. Sawyer, 17 Iowa, 517; Nod v. Ewing, 9 1ml. 37; 1'ratt 
v. Tefft, 14 Mich. 191 ; Westervelt u. Gregg, 12 N. Y. '202. 

4 Stat. 27 ITcn. VIII. c. 10. 

6 Cash, Appellant, 6 Mich. 193 ; Lano i\ Dorman, 4 111. 238. 
23 



854 CONSTITUTIONAL LAW. 

Curative Laws. — One method in which beneficial in* 
terests are protected by legislation is by a retrospective, 
correction of errors and defects in conveyances. A lead- 
ing case on the subject was one in which a statute was 
passed to validate certain leases of land which under 
previous judicial decisions had been declared inopera- 
tive. By the express terms of the statute it was made 
applicable to pending suits in which contracts of leasing 
might come in question. It was sustained as undoubt- 
edly valid, though it was contested as a law impairing 
the obligation of contracts. 1 Manifestly, it had no such 
effect as was pretended ; it rather imported into the con- 
tract an obligation which the parties had attempted, but 
failed, to incorporate in it. And this is the principle 
on which all such laws may be sustained ; they merely 
give legal validity to what the parties have attempted to 
accomplish; converting their invalid agreements into 
the valid conveyances which they undertook to make. 
Presumptively, therefore, these laws further the intent 
the parties had in view. 

It may happen that the grantor in the invalid convey- 
ance, when he finds the title has not been transferred, 
may desire to take advantage of the invalidity, and may 
insist that he has a vested right which the legislature 
cannot take away. But obviously he has in such a case 
no equitable right. In equity he is considered as hold- 
ing for the benefit of the party to whom he undertook to 
convey; and, as has been well said, "Courts do not 
regard rights as vested contrary to the justice and equity 
of the case." 2 

This principle has been applied to the conveyances of 
married women, and they have been validated retro- 

1 Satterlee v. Mathewson, 16 S. & R. (Perm.) 169; s. c. in error, 2 
Pet. 380. 

2 State v. Newark, 27 N. J. 185, 197; Foster v. Essex Bank, 16 
Mass. 245 ; Brown v. New York, 63 N. Y. 239 ; Chestnut v. Shane's 
Lessee, 16 Ohio, 599; Read v. Plattsmouth, 107 U. S. 568. See Gross 
O. United States Mortgage Co., 108 U. S. 477. 



PEOTECTiON TO CONTRACTS AND PEOPEETY. 355 

spectively, though they were so entirely void in theii 
origin that they did not constitute even a contract, or 
raise an equity which could be taken notice of judicially. 1 
The woman has no right to complain if the law which 
prescribed forms for her protection shall interfere when 
justice demands it, to preclude her taking advantage of 
an imperfection in her own act. 2 

If, however, the grantor in the invalid conveyance shall 
subsequently convey in due form of law to a bona fide 
purchaser, the previous deed cannot afterwards be cor- 
rected to his prejudice. The reason is, that he has equi- 
ties equal to those of the first purchaser, and having 
connected the legal title with these, his right, according 
to well settled rules of the courts of equity, has become 
unassailable. 3 And if the defective conveyance was 
one which for any other reason was inoperative; as 
where the grantor assumed to convey by it contrary to 
conditions or qualifications which, for the benefit of 
others, were imposed upon his title, or in fraud of the 
rights of others whose representative or agent he was, 
it is not in the power of the legislature to validate it 
retrospectively, since validating it would divest equities 
instead of perfecting them. 4 (An invalid will, or trust 
in a will, can never be helped after the testator's death, 
for the obvious reason that titles vest under it imme- 
diately. 5 

( The defects in conveyances and contracts which render 
them inoperative arise from two causes : — 1. Defect in 
legal capacity in the party making them; 2. Failure to 

1 Watson v. Mercer, 8 Pet. 88; Underwood v. Lilly, 10 S. & E. 
(Penn.) <J7 ; Deutzel v. Waldie, 30 CaL 138. 

2 Goshorn v. Purcell, ll Ohio St. 641, 

3 Brinton v. Scorns, 12 [owa,389 ; Le Bois v. Brarael,4 How 440; 
Sherwood v. Fleming, 25 Texas, 408 (Supplement). 

4 Shonk v. Brown, (*.i Penn. St. 320. 

5 Hilliard v. Miller, 10 Penn. St. : ; -Jt'> ; Greenough v. Greenough, 
11 Penn. St. 489 ; Aller's Appeal, t'>7 Penn. St. 341 ; State r. Warren, 
88 Md. 338. 



356 CONSTITUTIONAL LAW. 

observe some legal formality in their execution. The 
former may arise from nonage, coverture, or guardian- 
ship, or it may be a defect of intelligent will. The dis- 
abilities which are imposed by the law itself may be 
removed or modified by a change in the law. The same 
is true of legal formalities : the statute establishes what 
are deemed important, and the statute may dispense with 
them. And the general rule is this: it is competent for 
the legislature to give retrospectively the capacity it 
might have given in advance, and to dispense retrospec- 
tively with any formality it might have dispensed with 
in advance. 1 But it can never, either prospectively or 
retrospectively, dispense with the act of assent, and 
therefore cannot validate th'-, deed of an insane person. 2 
The power to correct applies to all classes of con- 
tracts. A marriage defective in formalities of execu- 
tion may be validated retrospectively; 3 so may notes 
and bills issued by a corporation on which the power 
has not been conferred by its charter ; 4 so may negotiable 
paper which is wholly or in part void for usury. 5 It is 
not an .uncommon exercise of legislative power to 
validate the imperfect contracts of municipal corpo- 
rations, whether the defect consists in a want of original 
power in the corporation to do what was attempted, 
or in neglect of proper formalities in entering into 
them. 6 

1 Single v. Supervisors of Marathon, 38 Wis. 363. 

2 Routsong v. Wolf, 35 Mo. 174. 

3 Goshen v. Stonington, 4 Conn. 209. 

4 Lewis v. McElvain, 16 Ohio, 347 ; Trustees v. McGaughy, 2 Ohio 
St. 152. 

5 Savings Bank v. Allen, 28 Conn. 97; Thompson v. Morgan, 6 
Minn. 292 ; Parmelee v. Lawrence, 48 111. 331 ; Woodruff v. Scruggs, 
27 Ark. 26. 

6 Booth v. Woodhury, 32 Conn. 118; Crowell v. Hopkinton, 45 
N. H. 9 ; Ahl v. Gleim, 52 Penn. St. 432 ; State v. Demorest, 32 N. J. 
528 ; Coffman v. Keightley, 24 Ind. 509 ; Mills v. Charlton, 29 Wis. 
400 ; Morris v. State, 62 Tex. 728. See Mattingly v. District of Co- 
lumhia, 97 U. S. 687 ; Strosser v. Fort Wayne, 100 Ind. 443. 



PKOTECTION TO CONTRACTS AND PROPERTY. 357 

Curing Defects in Judicial Proceedings. — It is a well 
settled orinciple that the legislature can never, by retro- 
spective proceedings, cure a defect of jurisdiction in the 
proceedings of courts. The reason is manifest. Such 
proceedings being utterly void, they would acquire 
vitality as judicial acts, if at all, by the legislative act 
exclusively, and the curative act must therefore be in its 
nature a judgment. 1 But mere irregularities in judicial 
proceedings may always be cured retrospectively. A 
leading case was where a sale in a partition case was 
ineffectual, because the purchase was made by several, 
and the deed was made to one only. But it appeared 
that the deed was so made by mutual agreement of all, 
for convenience in making subsequent sales and convey- 
ances, and a healing statute was consequently in further- 
ance of justice, and unobjectionable. 2 So execution 
sales have been validated where the defect consisted in 
an overcharge of officer's fees on the execution, 3 and 
sales by executors and guardians where various irregu- 
larities existed not affecting the substantial interests of 
the parties concerned. 4 Indeed, it is not uncommon to 
provide by general law that certain specified defects 
and irregularities occurring in such sales shall not affect 
them; and the right to enact such a law is undoubted. 5 

Administrative Proceedings. — The same principle 
applies in all administrative proceedings. For example, 
irregular proceedings in taxation may be made good 

1 McDaniel v. Corrcll, 19 111. 226; Denny v. Mattoon, 2 Allen 
(Mass.), 361 ; State ?>. Boherty, GO Me. 504. A legislative act cannot 
authorize courts to change the effect of decrees which have become 
final. Roche v. Waters, 72 Md. 2f>4. 

' 2 Kearney v. Taylor, 15 Bow. 41)4. See Boyce r. Sinclair, 3 Bush 
(Ky). 2G1. 

8 Beach v. Walker, Conn. 100. 

4 Davis v. State Bank, 7 Ind. 316; Lucas v. Tucker. 17 Ind. 41. 

5 Toll?'. Wright, 37 Midi. 93. This whole matter of Retroactive 
Laws is fully and carefully examined in Mr. Wade's treatise on tha; 
Buhject. 



358 CONSTITUTIONAL LAW. 

retrospectively, 1 but subject to this limitation, that there 
must originally have been in the officers jurisdiction to 
impose the levy ; and they must have made it in accord- 
ance with the general principles which underlie the power 
to tax. 2 An instance of the failure to observe these 
principles would be a levy without an apportionment 
among the subjects taxed; an arbitrary levy being no 
tax at all. And a tax sale effected by fraud is incapable 
of confirmation. 3 Defects in execution or mortgage 
sales, or in the execution of any statutory power, may 
be cured under the same rules. 4 And so may irregulari- 
ties in the proceedings of public and private cor- 
porations. 5 

Rights of Action. — It is not competent by legislation 
to bring into existence and establish against a party a 
demand which previously he was neither legally nor 
equitably bound to recognize and satisfy. 6 On the other 
hand, it is not competent for the legislature to deprive 
a party of a right of action accruing to him under the 
rules of the common law, or in accordance with its prin- 
ciples. Therefore the right to redress for illegal arrests 
cannot be taken away ; 7 neither can the right to recover 
back taxes illegally exacted, 8 nor the right to have a 

1 Butler v. Toledo, 5 Ohio St. 225 ; Iowa, &c. Co. v. Soper, 39 
Iowa, 112; Astor v. Xew York, 62 N. Y. 580; Sturges v. Carter, 114 
U. S. 511. 

2 People v. Lynch, 51 Cal. 15; Houseman v. Kent Circuit Judge, 
58 Mich. 36-4. 

3 Conway v. Cable, 37 HI. 82. 

4 Allen v. Archer, 49 Me. 346 ; Commonwealth v. Marshall, 69 
Penn. St. 328. 

5 Thompson v. Lee County, 3 Wall. 327 ; Mitchell v. Deeds, 49 DL 
416 ; State v. Guttenburg, 38 N. J. 41 9. 

6 Medford v. Learned, 16 Mass. 215 ; Albertson v. Landon, 42 Conn. 
209 ; People v. Supervisors, 43 N. Y. 130 ; Ohio, &c. R. R. Co. v. Lackey, 
78 PL 55 ; Cottrel v. Union Pac. Ry. Co., 21 Pac. Rep. 416 (Idaho) ; 
Miller v. Dunn, 72 Cal. 462. 

7 Johnson v. Jones, 44 111. 142 ; Griffin v. Wilcox, 21 Ind. 370. 

8 Hubbard v. Brainerd. 35 Conn. 563. 



PROTECTION TO CONTEACTS AND PKOPEBTY. 359 

void tax sale set aside. 1 Nor can conditions to the 
exercise of the right be imposed, which are of a nature 
to render it practically of no value. 2 

A statute of limitation takes away no right of prop- 
erty. J Such a statute prescribes a reasonable time within 
which a party claiming legal rights which another with- 
holds shall commence legal proceedings for their enforce- 
ment, and it withdraws the privilege of suing if the time 
is suffered to elapse without action. 3 This is a proper 
and reasonable regulation of a right; not a denial of 
it. 4 And when the time limited by the statute has been 
suffered to elapse without suit, so that the right of action 
is gone, it is not competent to revive it by retrospective 
legislation, since this would be equivalent to creating a 
new demand. 5 But all limitation acts must allow to 
claimants a reasonable opportunity to assert their rights 
in court, and one entirely and manifestly unreasonable 
in the time it gives is void. 6 

It is a rule of construction that a' statute of limitation 

1 Wilson v. McKenna, 52 111. 43. 

2 McFarlaud v. Butler, 8 Minn. 116; Wilson v. McKenna, 52 111. 
43; Lassitter v. Lee, 68 Ala. 287. Compare Coats v. Hill, 41 Ark. 149. 
But an action for a forfeiture, given by and depending on statute, 
will be gone if, before recovery, the statute is repealed without ex- 
pressly saving it. Ante, p. 344 ; Miller v. White, 50 N. Y. 139 ; Brei- 
tuug v. Lindauer, 37 Mich. 217. 

3 Bell v. Morrison, 1 Pet. 351 ; Koslikonoug v. Burton, 104 IT. S. 
668. 

4 Bell v. Morrison, 1 Pet. 351 ; Wheeler v. Jackson, 137 U. S. 245 ; 
State v. Jones, 21 Md. 432; Pitman v. Bump, 5 Oreg. 17. 

5 Brent v. Chapman, 5 Crane h, 358; Lockhart r. Horn, 1 Woods, 
628; Reformed Church V. Schoolcraft, 65 N. Y. 134; Atkinson v. Dun- 
lap, 50 Me. Ill ; Yancy v. Fancy, 5 Ileisk. 353; Horbach v. Miller. 
4 Neb. 31 ; Bradford v. Shine, 13* Fla. 398. In Campbell v. Holt, 115 
II. S. 620, it is held that there is a distinction between property ad- 
versely held and a promise to pay a debt; that one has no property in 
the bar of the statute as a defence to the promise, hut that the repeal 
revives the right to recover against him on his agreement. 

6 Perelos v. Watertown, 6 Hiss. 79; Hart r. Bostwick, 14 Fla. 168; 
Berry v. RamsdeU, 4 Met. (Ky.) 292; Ludwig v. Steward, 32 Mich. 27.' 



860 CONSTITUTIONAL LAW. 

does not apply to suits instituted by the State itself, 
unless it is so provided in express terms. 1 And State 
statutes cannot limit suits by the United States. 2 

Remedies. — The power to provide remedies for all 
civil wrongs, and to change them when found ineffectual, 
or when others shall promise to be more effectual, is and 
must be continuous.. The citizen has no vested right to 
any particular remedy, and the State may therefore take 
away at discretion those it provides, and substitute 
others which shall apply to wrongs already committed 
as well as to those which may be committed thereafter. 3 
The exceptions to this general statement are, that the 
remedy given must be one which recognizes and gives 
effect to the obligation of the contract when the wrong 
grows out of non-performance of contract, 4 and it must 
in any case be a remedy calculated to give redress, and 
not merely colorable. 5 A judgment for a tort, not 
being based upon the assent of parties, is not a contract, 
and the means of enforcing such a judgment may be 
taken away entirely. 6 And no right in property is vio- 
lated, and no wrong done, when a new or additional 
remedy is given for a right or equity previously in 
existence, and not sufficiently provided for before. This 
often becomes important to the accomplishment of effect- 
ual justice. 7 

An alteration in the rules of evidence is often one 
of the most serious modifications of remedies; but the 

i Gibson v. Chouteau, 13 Wall. 92. 
2 United States v. Hoar, 2 Mason, 311. 

8 Railroad Co. v. Hecht, 95 U. S. 168 ; Tennessee v. Sneed, 96 U. S. 
69; New Orleans, &c. R. R. v. New Orleans, 151 U. S. 219. 

4 McCracken v. Hayward, 2 How. 608 ; Gantley's Lessee v. Ewing, 
3 How. 707 ; Bronson v. Kinzie, 1 How. 311. 

5 Oatman v. Bond, 15 Wis. 20; Walker v. Whitehead, 16 Wall. 314. 

6 Louisiana v. New Orleans, 109 U. S. 285; Freeland v. Williams, 
131 U. S. 405. 

7 Hope v. Johnson, 2 Yerg. (Tenn.) 123; Danville v. Pace, 25 Grat. 
( Va.) 1 ; Bartlett v. Lang, 2 Ala. (n. s.) 401 ; Chaffe v. Aaron- 62 Miss. 
29; Schoenheit v. Nelson, 16 Neb. 235. 



PROTECTION TO CONTRACTS AND PROPERTY. 361 

power in the legislature to make it is undoubted, and 
the changes may be made to apply in the investigation 
of causes of action previously accruing. 1 So the burden 
of proof may be changed from one party to thp other by 
legislation; as has often been done by statutes which 
make a deed given on the sale of lands for taxes prima 
facie evidence of a complete title in the grantee, whereas 
before such statutes the grantee would be compelled to 
make out his prima facie case by showing that the pro- 
ceedings anterior to and upon the sale were regular. 2 
The statutes making defective records of conveyances 
evidence, notwithstanding the defects, is a further illus- 
tration of legislative power in this regard. 3 Such laws 
presumptively wrong no one. They provide such method 
of investigating the truth as seems likely to be most 
effectual and just for the particular cases mentioned, 
and they preclude no one from establishing his rights. 
A statute which should undertake to establish conclusive 
rules of evidence, whereby a party might be excluded 
from any opportunity to show the facts, on the affirma- 
tive presentation of his adversary's case, would be 
nothing short of a statute of confiscation, and manifestly 
in violation of constitutional right. 4 In saying this we 
except all those cases to which the principle of estoppel 
may be justly applied; that principle being that a party 
shall be precluded from showing a state of facts differing 
from that which by his own conduct or assurances lie 1ms 
induced another to believe in and act upon, when the 
effect would be to deceive and defraud the party so 

i Oo-den v. Saunders, 12 Wheat. 213, LM!> : Webb v. Den, 17 How. 
577 ; Rich v. Flanders, 39 N. II. 304 : Gibbs i\ Gale, 7 Md. 76. 

2 Sprague v. Pitt, McCahon (Kans.), 212; Callanan v. Hurley, 93 
U. S. 387; Hand v. Ballou, 12 N. Y. 541, So this rule when estab- 
lished may be abolished as to existing deeds. Gage v. Caraher, 125 
111.447; Strode ». Washer, 17 Oreg. 50. 

8 Webb v. Den, 17 How. 577. 

* Wright v, Cradlebaugh, 3 N'ev. 341 ; Groesbeck v. Seelev, 13 Mich. 
329; East Kingston v. Towle, 18 N. 11. 57. 



362 CONSMTtTTIONAL LAW. 

acting. This is a valuable and just principle recognized 
by the common law and in equity. 

Betterment Laws. — Those laws which charge a man's 
land with a lien in favor of one who, while holding it 
adversely in good faith, has expended his money in 
improvements upon it, seem at first view to be laws 
creating demands for the improvement of one's lands 
against his will ; but as they only recognize an equity to 
the payment for benefits which he must appropriate 
when he recovers his land, they are not unjust and not 
unconstitutional. 1 All such laws give the owner the 
option to pay for the improvements and take the land, 
or to abandon the land to the occupant, and recover its 
value without the improvements ; which is as much as in 
justice he can claim. It would not be competent to 
make him personally liable for the improvements. 2 

Sales for Taxes. — Taxes may always be levied 
through administrative proceedings, the assessors exei 
cising quasi judicial authority in so doing. This is 
due process of law for such cases. 3 The collection of 
taxes may be enforced by suits, by sale of property, 01 
by forfeiture for non-payment or for attempts to evade 
the law. Where the tax is a personal or property tax, 
it is most commonly collected by means of a seizure and 
sale of property. -. The general rule is, that in proceed- 
ings for this purpose the officers must follow the law with 
some strictness, and comply with all those provisions 
which are enacted for the protection of the person 
taxed. 4 For the collection of imposts and excise taxes 
the United States has always made provision under which 
forfeitures may be imposed for evasions of the law. 

1 Whitney v. Richardson, 31 Vt. 300; Ross v. Irving, 14 HI. 171. 

2 Childs v. Shower, 18 Iowa, 261 ; McCoy v. Grandy, 3 Ohio St. 463. 

3 Cruikshanks v. Charleston, 1 McCord (N. C), 360; Weimeru, 
Bunbury, 30 Mich. 201, 212; Davidson v. New Orleans, 96 U. S. 97; 
Hagar v. Reclamation Dist., Ill U. S. 701. 

4 Stead v. Course, 4 Cranch, 403 ; Williams v. Peyton, 4 Wheat. 77. 



PROTECTION TO CONTRACTS AND PROPERTY. 363 

The forfeitures sometimes extend, not merely to the 
property or thing in respect to which the tax is imposed, 
but to the building or ship which has been made the 
instrument of accomplishing the fraud upon the revenue. 
( Forfeitures are judicially declared, and, as they accrue 
at the time when the illegal act was committed, it is 
neld that the judgment relates back to that time, and will 
cut off the right of a subsequent bona fide purchaser. 1 

Section III. — The Eminent Domain. 

The Constitution. — In the Fifth Amendment to the 
Constitution, the fact is recognized that in some cases 
the necessities of the government must override the 
rights of private ownership, and compel the surrender of 
specific private property to the public use. To prevent 
oppression in such cases, it is provided that private 
property shall not be taken for public use without just 
compensation. This is a declaration of the underlying 
principle of the law of eminent domain. Similar pro- 
visions in State constitutions are obligatory on State 
authorities, and, while the Fifth Amendment does not 
bind the States, the Fourteenth Amendment, in providing 
that no State shall deprive any person of property with- 
out due process of law, in fact prohibits the States from 
taking private property for public use without making 
compensation, and makes it necessary that the States, 
in the exercise of this power, use processes that are 
adapted to secure substantial justice, j 
Q Definition. — The eminent domain may be defined as 
the lawful authority which exists in every sovereignty to 
control and regulate those rights of a public nature which 
pertain to its citizens in common, and to appropriate and 
control individual property for the public benefit, as the 
public safety, necessity, convenience, or welfare may 

1 Henderson's Distilled Spirits, u Wall, 44. See United States * 
The Reindeer, 2 Cliff. 57. 



S64 CONSTITUTIONAL LAW. 

demand. The most important of these public rights 
consist in the use of the public highways, by land or by 
water, and to participate in the public fisheries. High- 
ways and other public conveniences, however, must be 
provided by the State in the exercise of the emineut 
domain; and as the legal controversies respecting its 
principles usually arise in connection with appropriations 
for these purposes, the right itself is often spoken of 
and treated as if it were restricted to such cases. 

State and Nation. — As between the United States 
and the several States, the regulation and protection of 
private rights, privileges, and immunities belong pri- 
marily to the States, and the States are expected to make 
provision for the conveniences and necessities of public 
travel, and for the other wants of the general public, or 
of the State itself, which are commonly supplied under 
this right. The eminent domain, therefore, pertains in 
general to the States, not to the United States. Never- 
theless, for -all national purposes it is in the United 
States, and the government may exercise the power of 
appropriation as an attribute of the national sovereignty. 1 
And Congress may give a railroad company created 
under a State law the right to exercise the power of 
eminent domain in a Territory. 2 In the Territories 
the general right belongs to the United States, but it is 
within the ordinary compass of territorial legislative 
power to exercise it for local purposes. When the Ter- 
ritory is admitted into the Union as a State, the right 
passes with all its incidents to the new sovereignty. 3 
Among these incidents is the right to the sea-shore below 
the line of private ownership. 4 

1 Kohl v. United States, 91 U. S. 367; Cherokee Nation v. Sou. 
Kans. Ey. Co., 135 U. S. 641. The United States may delegate to a 
State tribunal the power to ascertain the compensation to be paid for 
the property appropriated United States v. Jones, 109 U. S. 513. 

2 Cherokee Nation v. Sou. Kans. Ky. Co., 135 U. S. 641. 

3 Weber v. Harbor Commissioners, 18 Wall. 57. 
* Pollard's Lessee v. Hagan, 3 How. 212, 



PROTECTION TO CONTRACTS AND PROPERTY. 365 

..Legislation Essential. — But although the right is in- 
herent in sovereignty, it lies dormant until legislation is 
had, defining the occasions, methods, conditions, and 
agencies under and by means of which it may be exer- 
cised. ) And as an exercise of the right in the appropria- 
tion of private estates against the will of the owners is a 
severe instance of governmental convenience displacing 
private ownership, the rule is general that the legislation 
which permits it must be strictly construed and strictly 
followed, and that every precedent form or ceremony 
which by law is made a condition to a completed ap- 
propriation must be had or observed before the right 
of the government will be perfected, and the right of the 
citizen appropriated. 1 

Distinguished from Taxation. — Taxation takes prop- 
erty from the citizen for the public use, but it does so 
under general rules of apportionment and uniformity, 
so that each citizen is supposed to contribute only his 
fair share to the expenses of government, and to be com- 
pensated for doing so in the benefits which the govern- 
ment brings him. What is taken under the right of 
eminent domain, on the other hand, is something excep- 
tional, — some particular parcel or item of property of 
which the government has special need. The case, 
therefore, is not one in which there can be any apportion- 
ment of the burden as between the citizen whose property 
is taken and the body of the community, and compensa- 
tion to him of a pecuniary nature must therefore be 
made. Equalization in any other mode is not possible. 

The Purposes. — The purposes for which the right of 
appropriation may be exercised must be determined by 
the needs of the government, and be declared by law. 
The United States, in the exercise of the powers con- 
ferred upon it by the Constitution, may construct for- 
tresses, lighthouses, piers, docks, military roads, public 

1 Nichols v. Bridgeport, 23 Conn. 189; Burt v. Brigham, 117 Mass. 
307. 



&66 CONSTITUTIONAL LAW. 

buildings, &C., 1 and for these or any other constitu- 
tional purpose may have need of land or material which 
the owner refuses to sell, or for which he demands an 
extortionate compensation. Any such purpose is within 
the reason of the right, and may be supplied by means 
of its exercise. The State provides for the ordinary 
highways, and for other State and municipal purposes, 
under a similar necessity, and under the same right. 2 
The limitation in either case must be this: that the 
purpose must be public, and must be one which falls 
within the proper sphere of the government undertaking 
to make provision for it. 8 The United States must judge 
of its own needs, and make provision for them, and the 
State must in like manner judge of and provide for its 
own: neither can exercise this right for the benefit of 
the other. 4 

But though the appropriation must be made for some 
public use, it is not indispensably necessary that it be 
made to the State or the nation itself. When the need 
provided for is municipal, as where it is for a city street 
or park or public building, the land will be taken to the 
corporate body having need of it, not to the State, and 

1 And it may take private property by virtue of its right to regulate 
commerce ; but must make compensation. Monongahela Nav. Co. v. 
United States, 148 U. S. 312. 

2 The following are illustrations of what have been deemed public 
purposes, aside from highways and ordinary public buildings, for which 
property may be condemned : public parks, Brooklyn Park Com'rs v. 
Armstrong, 45 N. Y. 234 ; sewers, Hildreth v. Lowell, 1 1 Gray, 345 ; 
markets, Re Cooper, 28 Hun, 515 ; expositions, Rees' Appeal, 12 Atl. 
Rep. 427 (Penn.) ; telegraph lines, Pierce v. Drew, 136 Mass. 75 ; union 
depot companies, Union Depot Co. v. Morton, 83 Mich. 265 ; irrigation 
of arid lands, Pallbrook Irrigation Co. v. Bradley, 164 U. S. 112; the 
preservation of a battle-field, United States v. Gettysburg Electric Ry. 
Co., 160 U. S. 668. 

3 When the legislature has declared the use to be a public one, its 
judgment will be respected by the courts unless it is palpably without 
foundation. U. S. u. Gettysburg Electric Ry. Co., 160 U. S. 668. 

4 Kohl v. United States. 91 U. S. 367. 



PROTECTION TO CONTRACTS AND PROPERTY. 867 

the corporate body may be permitted to be the actor in 
making the appropriation, and be clothed with the power 
of the State for the purpose. In some cases even a 
private corporation, when it has been created by law to 
supply some public convenience, may be endowed with 
the power of appropriation for the purpose, and is re- 
garded as a public agent in exercising it. A familiar 
instance is that of a railroad company empowered by 
legislation to appropriate a right of way to its own 
use. 1 

The line of distinction between the purposes that are 
to be deemed public and those which cannot be, is not 
very accurately drawn by the authorities. It is certain 
that no government can under any circumstances divest 
one citizen of his estate for the benefit of another, — the 
public interest being in no way involved, — and this 
whether compensation is made or not. 2 The case of a 
private road is one of this sort, and it can only be 
allowed, it would seem, where the people by their consti- 
tution have assented to it. 3 Nor in any case is the fact 
that the public will be incidentally benefited by the 
appropriation sufficient to supply the power, when the 
taking is purely for a private purpose. 

There are some cases, however, in which the improve- 
ment of private estates, where it cannot be accomplished 
without the appropriation of an easement for the purpose 
over the lands of others, has been deemed so far a matter 
of public interest as to bring the case within the princi- 

1 Beekman v. Saratoga, &c. R. R. Co., 3 Paige (N. Y.), 45, 73 ; 
Secomb v. Railroad Co., 2.3 Wall. 10S. Snob power may be given by 
Congress where tbe subject is within its competence. Buxton v. North 
River Bridge Co., 153 U. S. 525. 

2 Tyler y. Beacber, 44 Vt. 648 j Bloodgood r. Mohawk, &C R, K. 
Co., 18 Wend. (N. Y.) 9. 

3 Taylor v. Porter, 4 Hill (N. Y.), 140; Clark r. White, 2 Swan 
(Tenn.), 540 ; Consolidated Cannel Co. w. Cent. Pac. K. R. Co., 51 Cal. 
269 ; Steele v. County Com'rs, 83 Ala. 804 ; Sholl v. Germau Coal Co, 
118 111. 427; Logan V, Stogsdale, 123 Ind. 372. 



368 CONSTITUTIONAL LAW. 

pie of the law of eminent domain. Thus, it is held in 
some States that lands may be appropriated by flooding, 
to enable the owners of mill sites to improve them for 
manufacturing purposes, 1 and in Pennsylvania it seems 
that a private road may be laid out over the lands of an 
unwilling owner, to enable one who has a coal mine to 
obtain access to and develop it.' 2 It may be said of 
these cases, that the easement taken enables dormant 
wealth, in the development of which the whole public 
is concerned, to be brought into use and added to the 
general wealth of the State ; and the same may be said 
where large swamps or other low lands owned by indi- 
viduals are drained and made available by means of 
ditches cut across the lands of others, under the right of 
eminent domain. 3 But these are extreme cases, and 
stand upon disputed ground. Lands may always be 
appropriated, however, for the drainage of others with a 
view to the benefit of the public health. 4 

Adjudging the Necessity. — The State may not only 
determine upon the necessity of some appropriation for 
its needs, but it may also decide for itself whether it is 
needful to take any particular estate or parcel of prop- 
erty for the purpose. It is not of right that the property 
owner shall be heard upon this question, since, if it 
were, the public purpose might be defeated by an adjudi- 
cation against the necessity. This is so improbable, 
however, that it is not uncommon to provide by law that 
the necessity shall be passed upon by a jury or by com- 

1 Mills, Em. Dom, §§ 287, 288; Cooley, Const. Lim., 6th ed., 657, 
659; Head v. Amoskeag Co., 113 U. S. 9. 

2 Harvey v. Thomas, 10 Watts (Perm.), 63. The same doctrine has 
been applied to a subterranean mining railway. De Camp v. Hibernia 
R. R. Co., 47 N. J. L. 43. And see Phillips v. Watson, 63 Iowa, 28 ; 
Robinson v. Swope, 12 Bush, 21 ; Bell v. Lamborn, 19 Col. 346. 

3 Matter of Drainage of Lands, 35 N. J. 497 ; Talbot u. Hudson, 16 
Gray (Mass.), 417. As to irrigation, see Paxton, &c. Irrigating Co. a 
Farmers' Irrigation Co., 45 Neb. 884. 

* Reeves v. Treasurer, &c, 8 Ohio St. 333. 



" PROTECTION TO CONTRACTS AND PROPERTY. 369 

missioners. When a corporation is permitted to make 
an appropriation, it may also be empowered to judge of 
the necessity, where other provision is not made by the 
Constitution. 

What may be taken. — The property which the Con- 
stitution protects is anything of value which the law 
recognizes as such, and in respect to which the owner is 
entitled to a remedy against any one who may disturb 
him in its enjoyment. It is immaterial whether the 
property be tangible or intangible, — whether the interest 
in it be permanent or merely temporary. A franchise is 
the subject of appropriation equally with land, and the 
interest of the owners in it is also equally protected. 1 So 
the complete and exclusive possession of his estate is 
assured to every owner as much as is the fee itself, and 
he may defend himself against any trespass upon it, oi 
any encroachment not made under the constitutional com 
ditions. Therefore a telegraph company cannot set itb 
poles along the line and upon the right of way of a rail- 
road, until it shall first have obtained permission, or 
made lawful appropriation of the land for the purpose. 2 
And it has been held that a telephone company cannot 
put up its poles along the right of way of a railroad com- 
pany with its consent without compensating the owners 
of the fee. 8 So there is an appropriation of property 
where its value is taken, either wholly or in part, by 

1 Richmond, &c. R. R. Co. v. Louisa, &c. R. R. Co., 13 How. 71 ; 
New Orleans Gas Co. v. La. Light Co., 115 U. S. G73. 

2 Atlantic, &c. Tel. Co. v. Chicago, &c. R. R. Co., 6 Biss. 158. An 
ordinance against placing a house within forty feet of a street is held 
to constitute a deprivation of property. St. Louis v. Hill, 1 16 Mo. 527. 

3 American Tel. Co. v. Pearce, 71 Md. 535. This is in line with 
Telegraph Co. v. Barnett, 107 111. 507; Metrop. Tel. Co. v. Colwell 
Lead Co., 67 How. Pr. 3C,r>; Eels v. Am. Tel., &c. Co.. 14,"! N, V. 
133; W. U. Tel. Co. v. Williams, 86 Va. 696, where it is held that 
the erection of such poles and wires on a highway is :\ now use of it_ 
entitling the owners of the fee to compensation. In Julia Building 
Ass. v. Bell Tel. Co., 88 Mo. '258, and Pierc* v. £>rew, 136 Mass. 75 
the opposite conclusion is reached. 

24 



370 CONSTITUTIONAL LAW. 

something done or set on foot at a distance; as where, 
by means of a dam across a watercourse, one's land is 
flooded with driftwood, or sediment, 1 or where, by the 
occupation of the street in front of his lot, he is cut off 
from his means of access to it; 2 or where, after the State 
has granted an exclusive privilege, it grants another 
which competes with it, 3 and the like. Where land has 
once been appropriated to public use, there cannot be a 
new appropriation of it without distinct and express 
legislative authority. 4 

Incidental Injuries. — It is a general rule, however, 
that the mere fact that one suffers incidental loss in 
consequence of the undertaking and construction of a 
public work, where nothing to which he has a legal right 
is actually appropriated, can never give him a claim to 
compensation. The following are illustrations. A 
second toll-bridge constructed under legislative authority 
near the first may destroy its value; but unless the owner 
of the first had an exclusive franchise, he has no legal 
ground of complaint. So a railroad may render a turn- 
pike valueless, but when the turnpike itself is not taken, 
no property is taken ; there is merely a new competition 
in business to the injury of the party least competent 
to transact it profitably. 5 So a dam constructed under 

1 Pumpelly v. Green Bay Co., 13 Wall. 166. 

2 Lackland v. Railroad Co., 31 Mo. 180; Schneider v. Detroit, 72 
Mich. 240; Columbus, &c. Ry. Co. v. Witherow, 82 Ala. 190. But 
see Conklin v. New York, &c. Ry. Co., 102 N. Y 107 ; Henderson v. 
Minneapolis, 32 Minn. 319. 

3 Central Bridge Corp. v. Lowell, 4 Gray (Mass.), 474; Common- 
wealth v. Penn. Canal Co., 66 Penn. St. 41. 

4 In re Boston, &c. R. R. Co., 53 N. Y. 574 ; Prospect Park, &c. 
R. R. Co. v. Williamson, 91 N. Y. 552 ; Alexandria & F. Ry. Co. v. 
Alexandria, &c. R. R. Co., 75 Va. 780 ; Appeal of Sharon Ry., 122 
Penn. St. 533 ; Providence, &c. Ry. Co. v. Norwich, &c R. R. Co., 138 
Mass. 277 ; Valparaiso v. Chicago, &c. Ry. Co., 123 Ind. 467. So, if the 
land has been purchased, but is devoted to a public use. St. Paul Un. 
Depot Co. v. St. Paul, 30 Minn. 359. 

5 Kenneth's Petition, 24 N. H. 139 ; Lafayette P. R. Co. v> New 
Albany, &c. R. R. Co., 13 Ind. 90. 



PROTECTION TO CONTRACTS AND PROPERTY. 371 

legislative authority may have its value destroyed by the 
subsequent construction of a canal under like authority; 
but where the last grant is not inconsistent with the first, 
so that no contract is violated, it is equally true that no 
property is appropriated. 1 Loss to some one is almost 
a necessary incident of any exercise of governmental 
authority ; a tax law cannot be changed, a street opened 
or graded, a county seat changed, a new town set off 
from an old, or anything else of public importance done, 
without injurious consequences falling upon some one. 
But the loss is damnum absque injuria, as it is also in 
the instances above recited. 2 

The Damaging of Property. — To obviate the results 
of the prevailing doctrine as to awarding damages for 
incidental injuries, several States have by their constitu- 
tions provided that compensation should be awarded for 
property damaged or injured, as well as for that taken 
in the course of public improvements. The construction 
of these provisions has varied. Some courts have held 
that there must be a direct physical invasion of property, 
such as would have been the subject of an action at com- 
mon law, 3 while others have refused to adopt so narrow 
a view, and have held any pecuniary injury suffered was 
to be compensated. 4 Damages have been given under 
these constitutions for changing the grade of streets, 5 

1 Susquehanna Canal Co. v. Wright, 9 W. & S. (Penn.) 9. 

2 See Transportation Co. v. Chicago, 99 U. S. 635 ; Green r. State, 
73 Cal. 29; Kehrer v. Richmond, 81 Va. 745; Dantzer v. Indianapolis 
Union Ity., 141 Ind. 004 ; Jordan v. City of Benwood, 42 W . Ya. ;!li 

8 Edmundson y. Pittsburgh, &c. It. P. Co., Ill Penn. St. 316 ; Rigney 
v. Chicago, 102 111. 64 ; Rude v. St. Louis, 93 Mo. 408. See Caledonia 
Ry. Co. v. Walker's Trustees, L. It. 7 App. Cas. 259 ; also Raaenstein 
v. New York, &c. R. It. Co., 136 N. Y. 528. 

4 Reardon v. San Francisco, 66 Cal. 492; Gulf C, &C. Ry, Co. v. 
Fuller, 63 Tex. 467; Hot Springs It. R. Co. v. Williamson, 45 Ark 
429; Denver v. Haver, 7 Col. 113. 

6 Reardon V. San Francisco, 66 Cal. 492 ; Atlanta r. Creen. 67 Ga. 
886 ; Sheehy v. Kansas City, 94 Mo. 574; Hutchinson r. Parkersburg, 
15 W. Va. 226. 



372 CONSTITUTIONAL LAW. 

and cutting off egress thereby, 1 for laying a railroad in 
the street of which the abutter does not own the fee, 2 
and so on. 

The Interest appropriated. — When land is taken for a 
public use the fee is not in general appropriated, but an 
easement only is taken, and the easement consists in the 
right to make use of the land for the particular purpose, 
and for no other. When under such circumstances the 
use ceases, the owner is restored to his former estate. 
If in the mean time it becomes important to make use of 
the land for any other public use than that to which it 
was devoted by the first appropriation, and this is done, 
the original owner becomes entitled to a new assessment 
of compensation. ! The reasons for this are, first, that 
the new use may affect the right of reverter; but, second 
and principally, it introduces new elements, which might 
have affected in an important manner the compensation 
originally awarded had they then been present. It will 
be seen as we proceed that every inquisition of damages 
is made with the use in view to which the land is to be 
devoted ; one use may bring with it important compensa- 
tions in benefits, while another may be specially injuri- 
ous far beyond the value of the land taken, and a new use 
may entirely reverse these conditions. For example, if 

1 Rigney v. Chicago, 102 111. 64. So, if egress is rendered dan- 
gerous, but not cut off. Penn. S. V. R. R. Co. v. "Walsh, 124 Penn. 
St. 544. Not if a street is rendered impassable at some distance from 
one's property. Rude v. St. Louis, 93 Mo. 408 ; East St. Louis v. 
OTlynn, 119*111. 200. 

2 Hot Springs R. R. Co. v. Williamson, 45 Ark. 429; 136 U. S. 
121; Columbus, &c. Ry. Co. v. Witherow, 82 Ala. 190; Denver, &c. 
Ry. Co. w. Bourne, 11 Col. 59 ; Gottschalk v. Chicago, &c. Ry. Co., 14 
Neb. 550. But see Olney v. Wharf, 115 111. 519. If the railroad is on 
the other side of, and not in, the street, and the injury results from its 
operation and not its construction, it has been held that no damages 
can be recovered. Pennsylvania R. R. Co. v. Lippincott, 116 Penn. 
St. 472; Marchant v. Pennsylvania, 153 U. S. 380. The contrary is 
held in Omaha & N. P. Ry. Co. v. Janecek, 30 Neb. 276, and Gainesville, 
fee. R. R. Co. v. Hall, 78 Tex. 169. 



PROTECTION TO CONTRACTS AND PEOPERTY. 373 

a common highway is opened through agricultural lands, 
it will more often be beneficial to the premises than 
hurtful, and the award of damages to the owner will 
often be merely nominal. But if the highway is then 
converted into a canal, the injury is likely to be of a 
character to render the former assessment wholly inade- 
quate. (The general rule therefore is, that, when an 
appropriation of land is made for one purpose, the owner 
retains such an interest therein as entitles him, when 
the same land is taken for a new use, to a new estimate 
of his injury in view of the new conditions which the 
new use introduces, and of their effect upon his estate 
generally. And this right does not depend upon the 
question whether the fee was at first taken, or only an 
easement. The rule, however, can only apply where the 
first appropriation was of a part only of the parcel of 
land ; for if all was taken, the change in the use cannot 
concern the former owner. J 

Neiv Uses. — It is not a new use if a common highway 
is taken for a plank road or a turnpike; the public being 
at liberty to avail themselves of its advantages in the 
same way as before, and the tolls exacted being only a 
substitute for the tax which must before have been levied 
for repairs. 1 But when a highway or toll-road is taken for 
the purposes of a railway, the use is so different, and the 
probable influence upon the value of adjoining estates so 
different also, that it is justly held that a further prop- 
erty of the owner is appropriated when the change is 
made. 2 At least, he has a right to an inquisition, to 

1 Murray v. County Commissioners, 12 Met. (Mass.) 455. 

2 The State courts are not in entire agreement on this point. See 
Imlay v. Union Branch R. R. Co., 26 Conn. 249 ; White ». Northwest- 
ern, &c R.R., 113 N. C. 610; Phipps w. West. Md. R. K. Co., 66 Md. 
319; Montgomery v. Railway Co., 104 Cal. 186; Gaus & Sons Mfg, 
Co. v. St. Louis, &c, II. R. Co., 113 Mo. 308, In some States the 
abutting owner is not allowed damages unless the laying of a railroad 

On a city street cuts off Ins ingress and egress Indianapolis. B., & \Y. 
Ky. Co. v. Kberle, 1 10 lnd. 452; Iron Mt. K. R. Co. v. Bingham, 83 



374 CONSTITUTIONAL LAW. 

determine whether or not he suffers further injury. The 
case would be still plainer, if possible, were the highway 
taken for a canal. But the case of a city street after- 
wards appropriated to the purposes of a horse railway is 
different. When land is taken for a city street, it is 
taken for all the purposes to which city streets are 
usually devoted: for sewers, and the laying of water, 
gas, and steam pipes, as well as for passage of men and 
teams, and for all such improved methods of passage 
and carriage as may come into use, and as may not be 
inconsistent with the enjoyment of the way for other cus- 
tomary uses. A horse railway is such an improved 
method, and it is permitted for the reason that it tends 
to relieve the street, instead of further burdening it. 1 
So of street railways using electricity 2 or steam 3 as 
motive power. Similar to this, in some respects, is the 
case of a rafting and booming company on a natural 
watercourse in the lumbering regions, whose operations 
under authority of law may constitute a virtual monopoly 
of the stream ; but they are allowed because they facili- 
tate this peculiar navigation instead of hindering it, 
subject, nevertheless, to responsibility to the owners of 
the banks, should they cause them to be flooded or other- 
wise injured, 4 and to any persons lawfully using the 
stream whom they might Deedlessly or unreasonably 
obstruct or inconvenience. 

Term. 522. Concerning elevated steam railways, see Lahr v. Metro- 
politan El. Ey. Co., 104 N. Y. 268 ; N. Y. Elevated B. B. Co. v. Fifth 
Nat. Bank, 135 U. S. 432. Compare Doane v. Lake Street El. E. B, 
Co., 165 111. 510. 

1 Elliott v. Eair Haven, &c. E. E. Co., 32 Conn. 579; People v. 
Kerr, 27 N. Y. 188; Hodges v. Bait. Pass. By. Co., 58 Md. 603; Texas 
& P. Ey. Co. v. Eosedale Co., 64 Tex. 80. 

2 Taggart v. Newport St. Ey. Co., 16 E. I. 668 ; Lockhart v. Craig 
St. Ey. Co., 139 Penn. St. 419 ;" Halsey v. St. Ey. Co.,47N. J.Eq.380; 
Reid v. Norfolk City E. E. Co., 26 Southeastern Eep. 428. 

3 Briggs v. Lewiston, &c. Co., 79 Me. 363 ; TVilliams v. City Ey. 
Co., 41 Fed. Eep. 556. See cases ante, p. 373, note 2. 

4 Grand E-apids Booming Co. v. Jarvis, 30 Mich. 308 ; "Weaver v- 
Mississippi, &c. Co., 28 Minn. 534 



PROTECTION TO CONTRACTS AND PROPERTY. 375 

The rules respecting a second assessment are appli- 
cable to cases where the land was originally dedicated to 
a public purpose, as well as to those of a compulsory 
taking. 

Assessment of Compensation. — It is not an uncommon 
provision of law, that, when land is to be taken for the 
public use, an attempt shall first be made to agree with 
the owner upon compensation, and when this fails the 
compensation may be assessed by some statutory tri- 
bunal. It is not competent for the State to decide for 
itself what compensation shall be made, for the manifest 
reason that the question is one in respect to which the 
State and the property owner occupy antagonistic posi- 
tions ; and for the State to decide it would be to make 
itself judge in its own cause, in violation of an inflexible 
principle of constitutional right. 1 The duty of the State 
is to provide an impartial tribunal, which can judge of 
the injury that will be sustained, and before which the 
landowner shall be at liberty to appear and present his 
proofs in the customary modes. 2 

The rule by which compensation shall be measured is 
not the same in all cases, but is largely affected by the 
circumstances. If what is taken is the whole of what 
the owner may have lying together, it is clear that he is 
entitled to its value, judged by such standards as the 
markets and the opinions of witnesses can afford, and 
that this, except in extraordinary cases, must be the full 
measure of his injury. This rule will apply in all cases 
where the whole of any article or thing of value is taken, 
and not a part only, to the injury of what remains. 
But when less than the whole is taken, the question of 

1 Co. Lit., § 212; Dimes v. Proprietors, Sec, 3 House L. Cas, 759; 
Kich v. Chicago, 59 111. 286. 

2 Charles River Bridge v. Warren Bridge, 11 Pet. 420, 571 ; Powers 1 
Appeal, 29 Mich, 504. This tribunal is, however, not necessarily a 
jury. Bauman u. Ross, 167 U. S. 548; Cooley, Const. Lim., 6th ed« 
*95. 



376 CONSTITUTIONAL LAW. 

just compensation becomes a question of damages 
merely; * and in determining these the benefit to what is 
left may be offset against the damages, and the question 
to be determined will be to what extent the owner's in- 
terest in that a part of which is to be taken will be di- 
minished thereby. 2 If the taking is of some right in an 
easement, or exclusive franchise, or other intangible 
right, the question will also be one of damages merely. 
But in any case mere incidental injuries or benefits, like 
those suffered and received by the community at large, 
— such as the greater facility in travel when the taking 
is for a railway, or the greater danger of fright to teams 
when making use of the highway, — are to be excluded 
altogether from the computation. 3 It may possibly 
happen .that an assessment on these principles will award 
to the owner nothing, but he nevertheless in contempla- 
tion of law receives compensation in the benefits which 
overbalance his losses. 4 

; Payment. — It is sometimes expressly provided by law, 
that payment shall precede appropriation. When prop- 
erty is taken directly by the State, or by any municipal 
corporation under State authority, it is not absolutely 
essential, in the absence of express constitutional pro- 
vision to that effect, that compensation should be made 
before appropriation; 5 or even, if the statute so provides, 

1 Monongahela Nav. Co. v. United States, 148 U. S. 312 ; United 
States v. Gettysburg Electric Ry., 160 U. S. 668. 

2 Bauman v. Ross, 167 U. S. 548. 

3 Whitely v. Miss., &c. Co., 38 Minn 523 ; Washburn v. Milwaukee, 
&c. R. R. Co., 59 Wis. 364 ; Somerville, &c. R. R. Co. ads. Doughty, 
22 N. J. 495 ; Greenville, &c. R. R. Co. v. Partlow, 5 Rich. (S. C.) 428 ; 
Stone v. Heath, 135 Mass. 561; Setzler v. Penn., &c. R. R. Co., 112 
Penn. St. 56. 

4 White v. County Commissioners, 2 Cush. 361 ; Ross v. Davis, 97 
Ind. 79. 

5 Orr v. Quimby, 54 N. H. 590 ; Commissioners, &c. v. Bowie, 34 
Ala. 461 ; Talbot v Hudson, 16 Gray (Mass.), 417 Great Falls Mfg. 
Co. v. Garland, 25 Fed. Rep. 521. 



PROTECTION TO CONTRACTS AND PROPERTY. 377 

before the vesting of the title. 1 It is sufficient if provis- 
ion is made by which the parties interested can obtain 
compensation, and it seems to be sufficient if the State 
has provided a remedy by resorting to which compensa- 
tion can be assessed and adequate payment be secured. 2 
But where property is taken under public authority by 
a corporation, such as a railroad, the law is somewhat 
different. It is certainly not competent to deprive one 
of his property and to turn him over to an action at law 
against a corporation which may or may not prove re- 
sponsible. Although it is not always necessary that 
payment should be made before the appropriation, full 
and adequate means should be provided for securing 
compensation. 3 

The party may waive his right to payment in any case, 
either expressly or by failing to claim it within such 
period of limitation as may be established by law. 4 

1 Sweet v. Rechel, 1 59 TJ. S. 380. Compare Kennedy v. Indianap- 
olis, 103 U. S. 599. 

2 Sweet v. Rechel, 159 U. S. 380. 

8 Cherokee Nation v. Kansas Ry. Co., 135 U. S. 641 ; Backus v. 
Fort St. Union Depot Co., 169 U. S. 557. The student will of course 
notice that the necessary procedure depends upon the particular con- 
stitution or the statutes of the State. The text gives only the funda- 
mental principles of constitutional law, obtaining where there are no 
provisions beyond the ordinary constitutional requirement that just or 
reasonable compensation must be made. 

4 Matter of Albany St., 11 Wend. (N. Y.) 149 ; Callison v. Iledrick, 
15 Grat, (Va.) 244. 



878 CONSTITUTIONAL LAW. 



CHAPTER XVII. 

MUNICIPAL CORPORATIONS. 

Their Functions. — The place of municipal corpora- 
tions in the structure of American governments has been 
incidentally referred to in the preceding pages, and little 
further mention is important here. It is axiomatic thai 
the management of purelj* local affairs belongs to the peo- 
ple concerned, not only because of being their own affairs, 
but because thej T will best understand, and be most compe- 
tent to manage them. The continued and permanent ex- 
istence of local government is, therefore, assumed in all 
the state constitutions, and is matter of constitutional 
right, even when not in terms expressly provided for. It 
would not be competent to dispense with it by statute. 1 

Their Creation. — Nevertheless there is no constitu- 
tional form or model of local government, or standard or 
measure of local powers ; and these need to be different 
according to the circumstances. A cit} T of a million of 
inhabitants, with boulevards, parks, water-works, docks, 
and other public propert}', may need an elaborate structure 
of government with extensive powers, while a very simple 
form and few powers ma} 7 answer the purposes of a coun- 
try hamlet. To determine the local needs in this regard, 
legislation is requisite ; and the State, therefore, will create 
local governments, confer upon them such powers as in its 
wisdom may seem expedient, and prescribe such safeguards 
and limitations to their exercise as shall be deemed needful 
or prudent. The powers thus conferred the State may in- 
crease at discretion, so long as the}' are limited to govern- 
mental matters of purely local concern ; but the State may 
also diminish them at discretion, and may at any time 

1 People v. Hurlbut, 24 Mich. 44 ; People v. Lynch, 51 Cal. 15. 



MUNICIPAL CORPOKATIOtfS. 379 

abolish any particular local government and substitute 
another in its place. ( In other words, while the local com- 
munity is entitled to local government, it cannot claim, as 
against the State, any particular charter or form of local 
government. 1 I 

(The creation of municipal governments within the States 
belongs exclusively to the States. Congress may create 
them in the District of Columbia and the Territories. 
Within the Territories, however, it is customarj 7 to leave 
the authority with the territorial legislature. 

Duplicate Nature of Municipalities. — Municipal cor- 
porations are sometimes spoken of as having a duplicate 
nature, and the} 7 certainly possess and exercise two classes 
of powers ; the one of which pertains to them in what may 
be called their private capacity, and does not differ in 
nature from the powers exercised by other corporations, 
while the other pertains to their public capacity, and is 
purely governmental. In the one capacity the municipal 
corporation may acquire property for its own purposes and 
the benefit of its people ; and it has a constitutional right 
to be protected in this, as any individual or private corpo- 
ration has. 2 It may also make contracts within the limits 
of the powers the State has conferred, and it is entitled to 
exercise its own proper judgment and discretion in making 
such contracts, and cannot be forced by the State to con- 
tract debts against its will. 3 But in its public capacity 
the municipal corporation is merely an agent in govern- 
ment, and the State will emplo} r it as seems best, and 
mould and control its powers with a view to the utmost 

1 Dartmouth College v. Woodward, 4 Wheat. 518 ; Barnes v. Dis- 
trict of Columbia, 91 U. S. 540 ; Laramie Co. v. Albany Co.. 92 U. S. 
307. See, as to the full control of the State over municipalities. Co- 
manche Co. v. Lewis, 188 U. S. 198. 

2 Terrett v. Taylor, 9 Cranch, 43 ; Pawlet o. Clark, 9 Crunch, 292 ; 
State v. Haben, 22 Wis. 660. 

8 Hasbrouck v. Milwaukee, 18 Wis. 87 J Tope r. Phifer, 8 lleisk. 
(Tenn.) 682; Howell v. Bristol, 8 Bush (Ky.), 498; Washingtou 
Avenue, 09 Penn. St. 352. 



380 CONSTITUTIONAL LAW. 

usefulness. 1 To a large extent State duties are appor- 
tioned for performance between the local governments, 
and they are required to perform them within their 
limits, and to levy taxes for the purpose if necessary. 
Illustrations of State duties thus apportioned are those 
of maintaining local courts, and the local police force, 
and of making and keeping in repair the highways/ 2 
If the localities fail in these particulars, the State may 
coerce them; but it is inconsistent with local institu- 
tions, as they have always existed in this country, that 
the local community should be coerced by the State in 
matters of purely local convenience, or that the State 
should appoint officers to take charge of local affairs. 
I Legislative Powers. — Within their proper sphere the 
municipalities have legislative powers, and may make 
by-laws and ordinances which have the force of local 
law. These powers they exercise under the same rules 
which govern State legislative authority. They cannot 
delegate them to individuals for exercise; they must 
employ them in conformity to the charter of local gov- 
ernment; they are subject to all the restrictions which 
the Federal Constitution imposes on the States, — such 
as that ex post facto laws and laws impairing the obliga- 
tion of contracts shall not be passed; and they must re- 
strain their action within the municipal limits. The 
State itself cannot so far enlarge municipal powers as to 
enable the local officers to burden their people with taxes 
for objects not of local interest. 3 Nor can the people of 
a certain district in a county be jempowered to determine 
whether any person in the State shall take oysters with 
a dredge within the public waters of the county. 4 j 

1 Territorial limits of a municipalitv can be absolutely determined 
by the State. Forsyth v. Hammond, 166 U. S. 506. 

2 See People v. Draper, 15 X. Y. 532 : Baltimore r. State, 15 Md. 
476 ; In re Pennsylvania Hall, 5 Penn. St. 204 ; People v. Detroit, 28 
Mich. 228. 

3 Wells v. Weston, 22 Mo. 385 ; Livingston County v. Weider, 64 
HI. 427 ; Mills v. Charlton, 29 Wis. 413. 

4 Bradshaw v. Lankford, 73 Md. 428. 



CONSTRUCTION OF STATE CONSTITUTIONS. 381 



CHAPTER XVIII. 

THE FORMATION AND CONSTRUCTION OF STATE 
CONSTITUTIONS. 

Historical. — Before the outbreak of the Revolution 
which resulted in the separation of the thirteen English 
colonies from the mother country, each colony had a 
form of government that was suited to its needs. While 
the Revolution was in progress the colonies were changed 
into self-governing commonwealths, and the forms of the 
government were altered as seemed best to adapt them 
to the new conditions. All of the States save two drew 
up written constitutions. Rhode Island and Connecticut 
continued for some years under the charters that had 
been obtained from England in the time of Charles II. 
In drawing up these new constitutions different methods 
of procedure were adopted. Some of the constitutions 
were drawn up by the conventions or congresses which 
constituted the temporary State governments taking the 
place of the colonial governments which disappeared in 
the processes of revolution; and where conventions were 
elected by the people and charged with the duty of estab- 
lishing a constitution, they did not always confine them 
selves to that object and clearly distinguish between 
what might be justly considered the duties of such a body 
and the task of a government charged with the ordinary 
duties of legislation and administration. In Massachu- 
setts alone the method of procedure was adopted which 
lias since been commonly observed, and which gives full 
recognition of the principle so well expressed by John 
Adams, "that the people should erect the whole building 
with their own hands." Delegates elected to a couven 



382 CONSTITUTIONAL LAW. 

tion for the express purpose of forming a constitution foi 
that State submitted to the people the result of their 
labors, and the constitution thus submitted was ratified 
by the people and was declared to be the constitution 
"established by and for the inhabitants of the State of 
Massachusetts Bay." 1 It may be said, however, that in 
all of the States there was some recognition of the funda- 
mental principle that the people were the source of politi- 
cal power, and that the government was not in and of 
itself possessed of original and undelegated authority. 

Since these first constitutions were formed new States 
have been admitted into the Union, each with its own 
constitution, and scores of conventions have assembled 
either to draw up new constitutions or to prepare 
amendments and alterations in existing instruments. The 
constitutional convention is now a well recognized in- 
strument whereby the people express their will. The 
constitutions of new States preparing for admission to 
the Union are drawn up by conventions established for 
that purpose. 2 It sometimes becomes advisable to revise 
the constitution of existing States, and when more than 
mere amendment is necessary it is customary to summon 
conventions for the purpose. Some constitutions provide 
for calling such conventions, and others provide for the 
periodical submission of the question to the people 
whether a revision is desirable. 

Formation of Constitutions. — In regard to the forma- 
tion and amendment of State constitutions, the following 
seem to be settled principles. 

1. The people of the several Territories may form for 
themselves State Constitutions whenever enabling acts 
for that purpose are passed by Congress, but only in the 
manner allowed by such enabling acts, 3 and through the 

1 New Hampshire in adopting her second constitution also sub- 
mitted it to the people. 

2 See ante, p. 189. 

3 As we have seen, ante, p. 189, some States have been admitted 
without previous enabling act. 



CONSTRUCTION OF STATE CONSTITUTIONS. 383 

action of such persons as the enabling acts shall clothe 
with the election franchise to that end. If the Congress 
shall be satisfied to suffer the Territory to become a 
State, there are always questions of policy as well as of] 
constitutional law to be determined by Congress before 
admission ; — whether the constitution formed is repub- 
lican; whether suitable State boundaries have been fixed 
upon; whether the population is sufficient; whether any 
inveterate evil exists in the Territory which is now sub- 
ject to control but which might be perpetuated under a 
State government. The final decision must rest with 
Congress and judgment must be favorable before admis- 
sion can be expected. 1 

2. In all of the States the power to amend their con- 
stitutions resides in the great body of the people as an 
organized body politic. But the people in the legal 
sense are those who by the existing constitution are 
clothed with political rights. 2 

3. But the will of the people to this end can only be 
expressed in the legitimate modes, by which such body 
politic can act, and which must either be prescribed by 
the existing Constitution or by an act of the legislature, 
which alone is authorized to speak for the people upon 
this subject and to point out a mode of revision or 
amendment, in the absence of any provision to that end 
in the constitution itself. 8 

4. Amendments of a constitution or a revision of 

1 It has boon hold that when a constitution has boon adopted by the 
people of a Territory, and Congress prescribes certain changes and 
additions to be adopted by the legislature and declares such changes 
and additions to he fundamental conditions of admission, and the legis- 
lature accepts them, and the State is admitted, the change becomes a 
part of the Constitution and binding although not submitted to the 
people Tor approval. Brittle v. People, 2 Neb. 198; Secombev. Kittel- 
gon, 29 Minn. 555. As to conditional admission, see ante, p. 192. 

2 Luther v. Borden, 7 How. l : Wells tr. Bain, 7.") Penn. St, 89. 

3 Opinions of Judges, 6 Cush, 573] State r. McBride, 4 Mo. 303 
Kochler r. Hill, GO Iowa, 543. 



384 CONSTITUTIONAL LAW. 

it must be prepared by some body of representatives, 
but no body of representatives, unless specially clothed 
with power for that purpose by the people when choos- 
ing them, can rightfully take definitive action; they 
must submit the result of their deliberations to the people 
for ratification or rejection. The constitutional conven- 
tion is the representative of sovereignty only in a very 
qualified sense. It is its task to put in proper form the 
questions upon which the people are to pass. 1 

5. The power of the people to amend or revise their 
constitution is limited by the Constitution of the United 
States, It must not abolish the republican form of 
government, 2 or contain any provision which would in 
effect amount to the exercise of any power expressly or 
impliedly prohibited to the States by the Constitution of 
the Union. 

6. Subject to the foregoing limitation, each State must 
judge for itself what provision shall be inserted in its 
constitution. 3 J 

1 On this subject, see Jameson on the Constitutional Convention, 
4th ed., 479-520. " It is evident," says Mr. Jameson, " that the pre- 
vailing sentiment of the country from the earliest times has favored 
the submission of constitutions to the people." See also Wells v. Bain, 
75 Penn. St. 39 ; Woods Appeal, 75 Penn. St. 59. But such practice 
has not been universal even in later years. In Mississippi in 1890 and 
in South Carolina in 1895, the convention established the constitution. 
The Supreme Court of Mississippi held that the legislature called a 
convention with authority to enact a constitution, and that the conven- 
tion was a sovereign body. Sproule v. Frederick, 69 Miss. 898. For 
a list of submitting and non-submitting conventions, see Jameson, 
Const. Conv. 488. When a constitution has been regarded by the 
people of the State as valid, and it has never been adjudged illegal 
by the courts, a Federal court will not question its validity. Smith v. 
Good, 34 Fed. Rep. 204. 

2 See ante, Chap. XL, and Const., Art. IV. § 4. 

3 All State constitutions now contain within themselves provision 
for amendment. Some require the question of calling a convention to 
revise the constitution to be submitted to the people at stated periods ; 
others leave it to the legislature to call a convention, or to submit to 
the people the question of calling one ; while the major part allow the 



CONSTRUCTION OF STATE CONSTITUTIONS. 385 

Contents. — A State constitution maybe expected to 
contain (1) a description of the frame of government; 

(2) generally the qualifications of the right of suffrage; 

(3) the usual checks and balances of republican govern- 
ment, which recognize three separate departments of 
government; (4) some recognition of local self-govern- 
ment; (5) a declaration of rights for the protection of 
individuals and minorities. 1 This declaration usually 
contains the following classes of propositions : — (a) Those 
declaratory of the general principles of republican gov- 
ernment, (b) Those declaratory of the fundamental 
rights of the citizen, (c) Those declaratory of the prin- 
ciples which insure to the citizen an impartial trial, and 
protect him in his life, liberty and property. Many 
other things are commonly found in those charters of 
government, provisions which partake of the nature of 
ordinary acts of legislation, and not easily distinguish- 
able therefrom. It may be said, perhaps, that, as a mat- 
ter of principle, only those subjects should be embraced 
which are fundamental, and not those in regard to which 
the policy or interest of the State may vary from time to 
time and which may be properly left to the control of the 
legislature. ) But as a matter of fact it has become cus- 
tomary in recent years to place in the constitution many 
miscellaneous provisions dealing with subjects in which 

legislature to mature specific ameudments and submit them to the 
people, and these become part of the constitution if adopted by the 
requisite vote. 

1 A constitution ma}' be said, as far as structure is concerned, to 
contain five parts : — 1. Designation of the boundaries of the States. 
These are not generally found in the constitutions of the older States. 
2. A bill of rights. 3. A description of the form of government, giving 
the power and duties of officers and departments. 4. Miscellaneous 
provisions treating of various subjects, concerning which the people 
deserve to express their will. 5. The schedule, which is supposed to 
be merely temporary, and to lay down the method of ratification and 
the steps necessary for putting the new constitution into effect See 
Bryce, Am. Com., vol. 1, p. 437, 3d Am. ed. ; Jameson, (\>nst. Con* 
86-103. 



386 CONSTITUTIONAL LAW. 

the people are interested and concerning which they 
desire to express themselves. The later State constitu- 
tions, in other words, contain a great deal of direct 
legislation enacted by the people of the State on subjects 
which in the early constitutions would not be mentioned, 
and therefore left to the discretion of the government 
established by the instrument. 1 

Character. — We have already had occasion to notice 
the following fundamental propositions: that the Federal 
Constitution contains a grant of power to the Federal 
government, and that all power not so granted is reserved 
to the States or to the people; that prohibitions con- 
tained in the Federal Constitution are limitations upon 
the government of the Union only, unless the States 
are expressly mentioned. The State constitutions, on 
the other hand, are not grants of power to the State, 
but instruments which apportion and distribute govern- 
mental authority and impose restrictions upon govern- 
mental action for the protection of the individual or for 
the welfare of the people. And the legislative depart- 
ment is possessed of all legislative power not prohibited 
by the constitution explicitly or impliedly, or by the 
restrictions contained in the Federal Constitution. 2 ./ 

Construction. — However carefully constitutions may 
be made, their meaning must be often drawn in question 

1 The result is that the newer constitutions are much longer than 
the old. The first constitution of Virginia, for example, was con- 
tained in four quarto pages ; the last needed twenty-two. The con- 
stitution of Illinois in 1818 filled ten pages; that of 1870, twenty-five. 
The constitution of New Hampshire of 1776 contained about six hun- 
dred words ; that of South Dakota has over twenty-six thousand. See 
for full discussion, Bryce Am. Com., vol. 1, Chap. XXXVIII. Mr. 
Bryce says : " The framers of these more recent constitutions have in 
fact neither wished nor cared to draw a line of distinction between 
what is proper for a constitution and what ought to be left to be dealt 
with by the State legislature " Ibid., p. 443. 

2 See People v. Draper, 15 N. Y. 532, 543 ; Thorpe v. Railroad Co., 
27 Vt. 140; People v. Hill, 163 111. 186, 191; Cooley, Const. Lim, 
6th ed., pp. 106, 107, 201, and cases cited. 



CONSTRUCTION OF STATE CONSTITUTIONS. 387 

and in the construction of these instruments the follow 
ing rules are usually observed. 

^1. The practical construction must be uniform. A 
constitution does not mean one thing at one time and 
another at some subsequent time. 

2. The object of construction is to give effect to the 
intent of the people in establishing the constitution; it 
is the intent of the lawgiver that is to be enforced. 
But the intent is to be found in the instrument itself. 1 

3. The whole instrument is to be examined, with a 
view of determining the intention of each part. More- 
over, effect is to be given, if possible, to the whole 
instrument, and to every section and clause. And in 
interpreting clauses it must be presumed that words have 
been used in their natural and ordinary meaning. 2 Some 
provisions, however, especially those declaratory of per- 
sonal rights, can be understood only in the light of their 
history, and when they are expressed in technical lan- 
guage, we must understand the words in their technical 
sense. 

4. A State constitution should be understood and 
construed in the light and by the assistance of the com- 
mon law, and with the fact in view that its rules are still 
left in force. In judging of the meaning of the consti- 
tution we ure to keep in mind that it is not the beginning 
of law for the State, but that it presumes the existence 
of a well understood system which is to remain in force 
and be administered, but under such restrictions as the 
instrument imposes. 3 

1 People v. Purely, 2 Hill, 35; Beardstown v. Virginia, 76 111. 34 ; 
Cooley, Const. Lim.. 6th ed., p. 70, and cases cited. 

2 The framer of the Constitution and the people who adopted it 
"must be understood to have employed words in their natural souse, 
and to have intended what they said." Marshall, C. J., in Gibbons v. 
Qgden, 9 Wheat. I, 188. See also Beardstown r. Virginia, 70 111. 34; 
Hale r. Everett, 53 N. II. 9; Green v. Weller, 32 Miss. 650. 

a Stale v. Noble, 118 1ml. 350 ; Mattox v, United states. 156 U. & 
237. 



S88 CONSTITUTIONAL LAW. 

5. A constitution should be interpreted as operating 
prospectively only. This is the rule in regard to stat- 
utes, and it seems on principle equally applicable to 
constitutions. 

6. When a constitution gives a general power ox 
enjoins a duty, it also gives, by implication, every par- 
ticular power necessary for the exercise of the one or 
the performance of the other. The implication should 
be not merely conjectural or argumentative, and where 
the means for. the exercise of a granted power are given 
no other means can be implied. 1 Similarly where the 
power is granted in general terms, the power is to be 
construed as coextensive with the terms unless some 
clear restriction upon it is deducible from the context. 2 
And if the constitution defines the circumstances under 
which a right may be exercised or a penalty imposed, 
the specification is an implied prohibition against add- 
ing to the condition or extending the penalty to other 
cases. 3 

7. Sometimes after a careful examination of the con- 
stitution itself, there may remain doubts and ambigui- 
ties to be explained. Then, and only then, is it proper 
to seek elsewhere for aid; and under such circumstances 
certain aids may be resorted to. 

Among these aids are the following : — 

Aids in Construction. — (a) A consideration of the 
object to be accomplished or the mischief designed to 
be remedied or guarded against, by the clause in which 
the ambiguity appears, is helpful in determining its 



1 Field v. People, 3 111. 79, 83 ; State v. Hallock, 14 Nev. 202. 

2 Story on Const., §§ 424-426 ; Cooley, Const. Lim., 6th ed., p. 78. 

3 For example, the legislature cannot add to the constitutional 
qualifications for voters : Fison v. Farr, 24 Ark. 161 ; State v. Wil- 
liams, 5 Wis. 308; McCafferty v. Guyer, 59 Penn. St. 109; nor of an 
officer: Feihleman v. State, 98 Ind. 516; nor arid to constitutional 
grounds for removing an officer : Lowe v. Commonwealth, 3 Met 
{Ky.) 237. 



CONSTRUCTION OF STATE CONSTITUTIONS. 389 

meaning. 1 (b) An examination of the proceedings of 
the constitutional convention will sometimes he of 
assistance. Such an examination has, however, evident 
difficulties, since the proceedings may not clearly point 
out the purpose of the provision in question. And even 
if the meaning of the convention is ascertained, it is by 
no means to be allowed controlling force, especially if 
that meaning appears not to be the one which the words 
would naturally convey. 2 The constitution obtains its 
force from the people, not from the convention, and 
it is not to be supposed that they looked for any ab- 
struse or hidden meaning in the words, but ratified the 
instrument in the belief that words employed were used 
in the sense obvious to the common understanding. 3 
(c) Contemporaneous construction of the constitution is 
of value, and the practical construction that has been ac- 
quiesced in for a considerable period must have great 
weight. 4 If no ambiguity or doubt appears, however, 
circumstances will not be allowed to introduce a difficulty 
where the language is plain. 5 But where a particular 
construction has been accepted as correct, and especially 
when this has been given contemporaneously with the 
adoption of the constitution, and by those who had op- 
portunity to understand the intention of the instrument, 
strong presumption exists in favor of such construction. 6 

1 People v. Potter, 47 N. Y. 375; Baltimore v. State, 15 Md. 376; 
People v. Gies, 25 Mich. 83. 

2 Taylor v. Taylor, 10 Minn. 81 ; State u. Doron, 5 New 399; Ras- 
musseu v. Baker, 50 Tar. Rep. 819 (Wy.). 

3 Beardstown v. Virginia, 76 111. 34. 

4 Field v. Clark, 143 U. S. 649, 683; United States r llealey, 1G0 
U. S. 136. 

5 Story on Const., § 407 ; State v. Wrightson, 56 N. J. Law, 126. 

6 " Great weight has always been attached, and verv rightly attached, 
to contemporaneous exposition." Marshall, C. J., in Cohens v. Virginia, 
6 Wheat. 264, 418. See also Bank of United States v. Halstead, 10 
Wheat. 51, 53; Stuart r. Laird, l Cranch, 299; State », Gerhardt, I 15 
Ind. 439. There are some cases which go further than the principle 



890 CONSTITUTIONAL LA^. 

Directory and Mandatory Provisions. — In the con- 
struction of statutes particular provisions may be re- 
garded as directory merely ; by which is meant that they 
are to be considered as giving general directions which 
ought to be followed, but not as so limiting the power 
in respect to which the directions are given that it can- 
not effectually be exercised without regarding them. 
Mandatory provisions on the other hand, must be fol* 
lowed ; and a failure to act in accordance with their terms 
renders proceedings under them void. But this distinc- 
tion is generally not recognized as applicable to por- 
tions of a constitution. These instruments do not 
usually undertake to prescribe mere rules of procedure 
except where such rules are looked upon as essential; 
they must, therefore, be considered as limitations upon 
the power to be exercised. 1 

The Enactment of Laws. — It is customary in State 
constitutions to make provisions often quite explicit 
concerning the manner of enacting legislation ; it may 
be said that all rules which are of the essentials of law- 
making must be observed, and it is only the ordinary 
rules of order and routine, such as are always supposed 
to be under the control of every deliberative body, that 
the constitution can be understood to have left as matters 
of discretion to be established, modified, or abolished 
by the legislative body for whose government in non- 
essential matters they exist. 2 

laid down in the text, and sustain legislative action on the sole ground 
of long acquiescence. See Brigham u. Miller, 17 Ohio, 445. 

1 " It will be found, upon full consideration, to be difficult to treat 
any constitutional provision as merely directory and not imperative." 
Emott, J., in People v. Lawrence, 36 Barb. 177, 186. See also Protho 
v. Orr, 12 Ga. 36; State v. Miller, 45 Mo. 495. 

2 " The modern constitutions go more and more into detail in regu- 
lating the. exercise of the several powers which they grant. The 
object is manifestly to correct existing or apprehended mischief not to 
legislate merely for order or convenient system." Sutherland on Stat- 
utory Construction, p. 67. 



CONSTRUCTION OF STATE CONSTITUTIONS 391 

Some constitutions provide that every bill shall be 
read on three several days in each house, unless, in case 
of emergency, some specified majority dispenses with the 
rule. The journals of each house ought to show that 
the rule has been complied with; but, in case they do 
not, the proper passage of the bill will, in the absence 
of evidence of which the courts can take cognizance, 
be presumed. 1 It is sometimes required that, on the 
final passage of a bill, the yeas and nays shall be entered 
on the journal. Such a direction is clearly imperative, 
and not to be dispensed with by the legislature. 2 ( A 
very important provision found in one form or another 
in many constitutions requires that an act shall have 
but one purpose, and that purpose must be expressed in 
the title. The purpose of such requirements is to pre- 
vent "the improper influences which may result from 
intermixing in one and the same act such things as have 
no proper relation to each other," 3 to prevent surprise 
or fraud upon the legislature, and to apprise the people 
of the subjects of legislation that are under considera- 
tion. The general purpose of these provisions is accom- 
plished when the law has one general object which is 
fairly indicated in the title; it is not necessary to indi- 
cate elaborately all the means for the accomplishment of 
the object. 4 If the act is evidently broader than the 
title, the part indicated by the title may be allowed to 
stand as constitutional, if it is complete in itself, capa- 
ble of being executed, and quite independent of the part 



1 Supervisors of Schuyler Co. v. People, 25 111. 163 ; Miller v. State, 
3 Ohio St. 476. See also People v. McElroy, 72 Mich. 446, where it is 
held that reading twice by title and once at length is sufficient 

a Spangler t\ Jacoby, 14 111. 297; Ryan v. Lynch, 68 111. 100; Peo- 
ple r. Commissioners of Highways, 54 N. Y. 276, 

3 Constitution of New Jersey, Art. IV., sec. 7, § i. 

4 Slack y. .Jacob, 8 W. Va. 612-641 : State r. Donaldson, 41 Minn. 
74; People v. Lawrence, 11 N. Y. 137; State v. tierhardt, 145 hid. 
439. 



392 4 CONSTITUTIONAL LAW. 

rejected. 1 But if the title actually indicates and the act 

itself actually embraces two distinct objects when the 

constitution says that it shall embrace only one, the 
whole act must be treated as void. 2 

1 Dewhurst v, Allegheny, 95 Penn. St. 437 ; McGee's Appeal, 114 
Penn. St. 470. 

2 San Antonio v. Gould, 34 Tex. 49 ; State v. McCracken, 42 Tex 
383. 



INDEX, 



A. 

ACCUSED PARTIES. 

(See Bail; Crimes; Habeas Corpus.) 

ACTIONS, 

for divorce 199 

penal 200 

local and transitory • 199 

rights in, are property 358, 359 

ADMIRALTY JURISDICTION, 

of federal courts 129-132, 138 

ADMISSION OF STATES, 

how brought about 187-195, 382 

ALIEN AND SEDITION LAWS, 

provisions of 108, 109 

ALIENS, 

how made citizens ......... 88, 269-271 

may be given special privileges S9 

AMBASSADORS, 

jurisdiction of cases affecting ....... .128-129 

AMENDMENTS, 

to federal Constitution 38, 218-223 

discussion of provisions of first ten 221-233, 263-267, 29 1- 

309, 317-327, 345-376 

. of thirteenth 237-210 

of fourteenth 240-863,268-275 

of fifteenth 290-294 

to State constitutions 813-216*383 



S94 ikbex. 

APPELLATE JURISDICTION, 

of federal courts 124-127, 148 

APPOINTMENT, 

to fill senatorial vacancy .•••••••.. 47-48 

to offices by the President 118 

APPORTIONMENT, 

of representatives ••••••• 47 

of taxes ........ 365 

APPROPRIATIONS, 

no money to be drawn but in pursuance of 120 

APPROVAL OF LAWS, 

by the President 51,119,178-181 

ARBITRARY ARRESTS, 

forbidden 229-233 

relief from 145-148,315-317 

ARBITRARY EXACTIONS, 

on pretence of taxation 358 

ARMS, 

right to keep and bear 297-299 

ARMY, 

Congress may raise and support 99 

commander-in-chief 114 

standing ....« 298 

ARREST, 

privilege of Congressmen from 50 

without warrant 232 

unlawful 229-233 

relief from . 145-148, 315-317 

ART, WORKS OF, 

copyright of 95, 96 

ARTICLES OF CONFEDERATION. 

(See CONFEDERATION, ARTICLES OP.) 

ASSEMBLY, 

right of 294-297 

ATTAINDER, 

bills of, forbidden 310-3] 2 

in cases of treason ••••• 104, 105 

AUTHOR, 

exclusive rights of . . • • * • « % » • 95, 96 



INDEX 395 

B. 

BAIL, 

right of accused parties to give 318 

BALLOT, 

voting by 48, 280-285 

BANKRUPTCY, 

power over 89, 90, 343, 344 

exemptions in cases of •••••••••• 89, 90 

BEARING ARMS, 

right of 297-299 

BETTERMENT LAWS, 

right to pass •.•••••••••••• 362 

BILL OF RIGHTS, 

of 1 William and Mary ••••. 7 

none in the Constitution • ••••••••• 17 

supplied by amendments 17, 18 

of State constitutions ...385 

BILLS, LEGISLATIVE, 

introduction of ••••••• 51, 391 

BILLS OF ATTAINDER, 

prohibition of 310-312 

BILLS OF CREDIT, 

States not to emit •••••••••••• 93 

what are •••••••• 93 

BLASPHEMY, 

may be punished ••••••••••••• 226 

in publications 302 

BOOKS, 

copyright of •• 95-96 

criticism of ;••••• 307 

BORROWING MONEY, 

power of, in Congress ••••••••••• 64 

BOUNTIES, 

offer of, may be recalled ••••• . 331 

BRIDGES, 

State power to authorise • ••••••••• 8j 



396 index. 

C. 

CHARTERS, 

when contracts . • . . 333, 334 

regulation of rights under „ . . . 338-342 

CHECKS AND BALANCES, 

in government, what are ......... 160-181 

CHRISTIANITY, 

recognition of, in the law 224-227 

CHURCH AND STATE, 

union of, forbidden 224 

CITIZENS, 

who are 89, 136, 137, 207 

aliens, how made 89, 269-271 

of different States, may sue in iederal courts . 123, 136, 137 

of States, privileges and immunities of 206-208 

of the United States, privileges and immunities of. . 272-274 

CITIZENSHIP, 

of colored persons 270 

of Indians 270 

how acquired .•••••••••.. 269-270 

how lost 271 

in State and nation • 271 

CIVIL LIBERTY, 

meaning of .....»•••••.. 246-247 

CIVIL RIGHTS, 

religious liberty 224-227 

security of dwelling, person, and papers 228-232 

freedom guaranteed 233-240 

guaranties of life, liberty, and equality 240-263 

right to jury trial in civil cases 263-267 

CLASS LEGISLATION, 

not admissible 247-248 

COINING MONEYS, 

power over 90 

what it consists in ........... 91-92 

COLONIES, AMERICAN, 

legislation for 4-6 

imperial taxation of 5, 6, 8 

right to common law in ....•• 6 

violations of constitutional right in ...••• • 8 



INDEX. 397 

COLOR, 

not to affect suffrage 290-295 

COLORED PERSONS, 

citizenship of 268-26& 

rights of, in schools •••••••••••• 255 

COMITY, 

interstate ♦ . ,196-213 

COMMANDER-IN-CHIEE, 

President to be •••• 114 

COMMERCE, 

Congress may regulate ••••••••••• 66 

meaning of 67 

includes telegraphic communication 67 

between the States, what is •••••••• 68, 69 

with Indian tribes • 69 

embargo as a regulation of ... • 70 

power to regulate exclusive in national government . 71-79 

concurrent power 70 

cases of bridges, dams, and ferries • • • • . 83-86 

must not be hampered by State taxes 73-76 

or by police power •••.. 76-79 

power of the State 79-83 

(See Common Carriers; Police Power.) 

COMMON CARRIERS, 

regulation of business of 71-83,258-260 

(See Railroad Companies.) 

COMMON LAW, 

what it is 7, 8 

colonists entitled to 8 

in the States .149-150 

United States has none 149 

COMPACT, 

the Constitution not a 27 

COMPACTS BETWEEN STATES, 

what may be entered into 101 

COMPENSATION, 

of members of Congress 50 

of the President 120 

for property taken for public uses 375-377 



898 INDEX. 

CONCURRENT POWERS, 

of State and nation 35, 36, 70 

CONFLICT OF LAWS, 

under the federal Constitution 31-33 

how may arise 196 

in cases of contracts and transfers of property . . . 196-199 

in questions of marriage and divorce 199 

in cases of penal prosecutions 200 

in local and transitory actions 199-201 

as to corporations 201, 202 

CONFLICTS OF JURISDICTION, 

how dealt with 152-155 

CONFRONTED WITH WITNESSES, 

right of accused party to be 323 

CONGRESS, 

powers of, in general 55 

to lay and collect taxes 55-66 

to contract debts 64 

to regulate commerce 66-88 

over naturalization 88, 270 

over bankruptcy 89 

to coin money 90 

to issue paper money 91 

to regulate weights and measures 94 

to punish counterfeiting . 94 

in respect to post-offices and post-roads .... 94 
in respect to copyrights and patents .... 95, 96 

to punish piracies, &c 97 

to declare and conduct war 98-101 

to govern ceded districts 102-104 

to punish treason 104, 314, 315 

non-enumerated and implied 105-110 

restrictions on . . 111-113, 224, 228, 229, 263-267, 

294-304, 310-327 

to suspend the habeas corpus 316-317 

to create and regulate courts 124 

to determine finally political questions 157 

to hold other departments in check .... 160-182 

to govern the Territories 182-186 

to admit new States 187-195,383 



INDEX. 399 

CONGRESS — continued. 

powers of, to protect republican government in the 

States 213-217 

to propose amendments to the Constitution . * . 218 
to create municipal corporations 379 

CONSCIENCE, 

freedom of 224-227 

CONSEQUENTIAL INJURIES, 

in exercise of eminent domain .... 370, 371, 373-376 

CONSTITUTION, 

definition of 22 

written and unwritten 22 

of Great Britain 6, 7, 24 

CONSTITUTION OE THE UNITED STATES, 

formation of 15, 16 

adoption of 15, 16, 26, 27 

sovereign powers under 22, 23 

not a mere compact 27-29 

is a grant of powers 29-31 

is supreme 31-34 

amendment of 38, 218-223 

modification of powers under 39-40 

CONSTITUTIONAL CONVENTION, 

work of . * 15,16 

in the States 3S2 

an agency of sovereignty 384 

CONSTITUTIONAL GOVERNMENTS, 

what are 22 

CONSTITUTIONS OF THE STATES, 

formation of the first 9, 10, 3 SI 

powers under " 22, 23 

fundamental principles of 23,386 

must yield to federal Constitution 32, 386 

admission of States under 187-195,383 

right to amend 213-216,383 

formation of 381-386 

contents of 385 

character of 386 

interpretation of 386-390 

special provisions of . . . o ( J0-o ( JJ 



400 INDEX. 

CONSTRUCTION, 

of the provisions for protection of individual rights . 17-19 

final authority in 157-159 

of State constitutions 386-392 

CONTEMPTS, 

of Congress ••••••••• 4-9-50 

of authority in general • . • 327 

CONTESTED FACTS, 

legislature not to decide 46 

CONTESTING ELECTIONS, 

methods of 283,289,290 

CONTINENTAL CONGRESS, 

powers of ••••••••. 8-11 

CONTRACTS, 

States may not impair obligation of, by their laws • • • 328 

what is a law • . • 329 

what are 329, 330, 331-334, 342-345 

obligation of • 329 

when statutes are •••.... 331 

offices are not 332 

statutory privileges are not 332 

essential powers of government not subjects of, in general 

334-337 

of the State not to tax 335 

of the State to give exclusive privileges .... 336-338 

State regulation of 338-342 

control of remedies upon ......... 342-344 

illegal or immoral 344 

States cannot add to 344 

whether Congress may violate 347 

validating imperfect 354-356 

COPYRIGHT, 

power over 95 

CORPORATE CHARTERS, 

protection of 333, 336-342 

regulation of rights under 339-342 

CORPORATE PROPERTY, 

of municipalities, protection in 379, 380 



INDEX. 401 

CORPORATIONS, 

chartered by Congress, taxation of 61-63 

powers of, limited to jurisdiction where created . . 201-202 

protection of charters of 333, 337, 339-342 

municipal 378, 380 

COUNSEL, 

right to 323 

privilege of 303 

COUNTERFEITING, 

punishment of 94 

COURTS, 

creation of 52, 53, 123, 124 

essential powers of 155 

martial • 156 

military 52, 156, 157 

territorial 52, 53, 155, 186 

political questions in 157 

(See Judiciary.) 

CRIMES, 

against the United States, what are 149 

legislative punishments for 310-314 

treason and its punishment • . • • 314, 315 

accusations of, by indictment 317, 318 

infamous, what are 318 

trials and punishments for 319-326 

CRITICISM, 

of persons, books, &c, by the press 306-309 

CROWN OE GREAT BRITAIN, 

control of colonies by 4-6 

CRUEL AND UNUSUAL PUNISHMENTS, 

forbidden '....324 

CURATIVE LAWS, 

when may be passed 354-357 

CUSTOMS DUES, 

power to levy and collect • • • . 55-64 



402 INDEX. 

D. 

DAMAGING, 

property in the exercise of the eminent domain . . 371-374 

DAMS, 

of navigable waters 83, 84, 107, 108 

DEBT, PUBLIC, 

power to create •••• 65 

constitutional provisions respecting • • • . • • 65, 66 

DEEDS, 

curing defective, by legislation 354-356 

DEFINITION, 

of bills of attainder 310-312 

of citizens 88 

of civil liberty ••••• 247 

of constitution 22 

of due process of law 241-245 

of eminent domain 363 

of establishment of religion 224 

of executive power 44-45 

of ex post facto law 312 

of infamous crime 318 

of judicial power \ , , . 45 

of legislative power 44 

of liberty 246-247 

of liberty of the press 299-309 

of nation 20 

of people 295 

of police power • 250, 338 

of political liberty 247 

of privileged communication 302 

of property 345 

of right of revolution 25 

of sovereignty 21 

of State 20 

of treason 315 

of unconstitutional law 24 

of vested rights « • . 351-352 

of mandatory and directory statutes 390 

DELEGATION OP POWERS, 

by legislative bodies Ill, 112 



INDEX. 403 

DENYING EQUAL PROTECTION OE THE LAWS, 

discussion of State action 247-250 

DEPARTMENTS OF GOVERNMENT, 

apportionment of powers to • . . , . • • . • 44-54 

each a check upon the others 160-195 

DIRECT TAXES, 

what are ...•••••* 63, 64 

DISCUSSION, FREEDOM OE. 

(See Press, Freedom oe.) 
DISTRICT OF COLUMBIA, 

government of 102, 379 

DIVORCE, 

conflict of laws in respect to ....... 199,254 

DOMICILE, 

protection of 228-231 

as determining rights .... 196-201, 252-254, 347-348 
DOUBLE PUNISHMENT, 

forbidden 325, 326 

DUE PROCESS OF LAW, 

meaning of 241-245 

in criminal cases •.... 326 

DUTIES AND IMPOSTS, 

may be laid . 55-65 

DWELLING-HOUSE, 

protection of 228-231 

E 

EDUCATION, 

right to 255 

ELECTIONS, 

of representatives in Congress . . 47, 48, 275-27S, 285-288 

of senators 47, fc8 

basis of suffrage for 276-277, 278 

qualifications of electors 278, 290-294 

general rules governing 278—290 

ELECTORS OF PRESIDENT, 

choice by . ... 62, 161 

ELIGIBILITY, 

of persona to office • 981 



404 INDEX. 

EMANCIPATION, 

history of 233-240 

EMBARGO, 

power to declare 70 

EMINENT DOMAIN, 

law of the 363, 377 

EMPLOYMENT, 

privilege to engage in 255-258 

regulation of 255-258 

prohibition of, injurious 257 

ENABLING ACT, 

for admission of State to Union 189-191, 382 

ENGLAND, 

constitution of 22, 24 

separation from 3-18 

EQUALITY, 

religious 224-226 

of civil rights 247 

in elections 292-294 

EQUAL PROTECTION OE THE LAWS, 

right to 247-250, 255-257 

ESTABLISHMENTS, RELIGIOUS, 

meaning of 224 

EVIDENCE, 

change in rules of 360 

EXCESSIVE BAIL, 

not to be required 318 

EXCISE TAXES, 

levy of 56 

EXCLUSIVE PRIVILEGES, 

grant of, in navigation 73 

to authors and inventors 95 

under State police regulations .... 80, 262, 336, 370 

EXECUTIVE DEPARTMENT. 

(See President.) 
EXECUTIVE POWERS, 

separated from others 44 



INDEX. 405 

EXEMPTIONS, 

of property from taxation •••• 227, 335 

under bankrupt laws .•••••••••.• 90 

EXPORTS, 

State taxes on. 86 

federal taxes on 87 

EX POST FACTO LAWS, 

'prohibition of • . . 312-314 

EXPULSION, 

from Congress 49 

EXTRADITION, 

as between the States 208-212 

F. 

FAITH AND CREDIT, 

to be given acts and records of other States . . . 202-206 
FEDERAL COURTS. 

(See Judiciary, Federal.) 
FERRY FRANCHISES, 

State power to create 83, 84 

FIFTEENTH AMENDMENT, 

to Federal Constitution discussed 290-294 

FISHERIES, 

State rights in 132, 208 

FORFEITURES, 

of political rights 271,279 

in enforcing taxes 362 

FOURTEENTH AMENDMENT, 

to Federal Constitution discussed . . . 240-263, 26S-275 
FRANCHISES, 

political 275-280 

corporate 83, 333, 338, 339 

municipal 334, 378, o. v 

FREEDOM, 

made universal • . . . 233-210 

FUGITIVES FROM JUSTICE, 

return of, as between the States 208-212 

FUGITIVES FROM SERVICE, 

return of # . . . . 213 



406 INDEX. 

G. 

GENERAL LAWS, 

incidental injuries from 345, 351-354 

GENERAL WARRANTS, 

illegality of 232 

GOVERNMENT, 

departments of • 44-54 

agencies of, not to be taxed • 62 

checks and balances in 160-181 

libels on 304 

GOVERNOR, 

not subject to judicial process •••• 122 

duty in extradition proceedings ••••••• 209-211 

GRAND JURY, 

when required ..••• 317, 318 

GRANTS, 

by States cannot be recalled • •••••••• 329 

GREAT BRITAIN. 

(See England.) 
GUARANTY, 

of republican government to the States • • • • • 213-217 



H. 

HABEAS CORPL'S, 

Act of 31 Charles II 7 

federal jurisdiction or writ of 146-148,315 

suspending privilege of ... . 315-317 

HARBOR REGULATIONS, 

States may make 70 

HEALTH LAWS, 

States may pass • • • • • 71, 79 

HIGH SEAS, 

crimes upon ••••• 97 

HIGHWAYS, 

taking for railroads, &c 373, 374 

providing for, is a State duty 380 



INDEX. 407 

HOUSE OE REPRESENTATIVES, 

constitutional provisions respecting • 47-51 

impeachment by ••• 177 

HUSBAND AND WIPE, 

laws changing prospective rights of 352 

(See Divorce; Marriage.) 



L 

ILLEGAL CONTRACTS, 

have no obligation 329, 330 

IMMUNITIES, 

of citizens of States, what are ••••».. . 206-208 

of citizens of United States 272-274 

IMPAIRING CONTRACTS, 

by State laws forbidden 328-345 

IMPARTIAL ACCOMMODATIONS, 

by carriers and innkeepers • 79, 258-259 

IMPARTIAL PROTECTION, 

right to 247-249 

IMPEACHMENT, 

power in respect to ••••••••• • 177> 178 

IMPLIED POWERS, 

of Congress, what are .••••••••• 105-111 

IMPLIED PROHIBITIONS, 

on taxation 61-63 

on interference with interstate commerce .... 71-79 
on State action 274-275, 384 

IMPORTERS, 

State taxes upon - .... 73, 74-77 

IMPOSTS, 

levy of • . • • • 55-65 

IMPRESSMENT, 

of sailors 91 

IMPRISONMENT, 

relief from, on giving bail 31S 

habeas corpus in cases of 145-148, 315-317 

IMPROVEMENTS, 

when owner of lands may be compelled to pay for . . . 3oi 



408 INDEX. 

INCHOATE RIGHTS, 

may be taken away 351,352 

INDEPENDENCE, 

Declaration of • • . . 3, 8, 9 

INDIAN TRIBES, 

regulation of commerce with 66, 69 

members of, are not citizens .••.•••••• 270 

INDIANS, 

may be citizens ....•• 270 

INDICTMENT, 

of accused parties 317, 318, 322 

INELIGIBILITY OF CANDIDATE, 

effect of 285, 289 

INFAMOUS OFFENCE, 

what is 318 

INNKEEPERS, 

regulation of business of • • 240, 258, 259 

INQUISITORIAL TRIALS, 

forbidden 322 

INSOLVENT LAWS, 

States may pass • . 89, 90, 344 

INSPECTION LAWS, 

of the States 71, 87 

INSTRUCTION OF REPRESENTATIVES, 

right of 42-43 

INSURRECTIONS, 

protection of States against • . 217 

INTEREST, 

State control of rates of ...» 260 

INTERNATIONAL LAW, 

what it is 21 

certain principles of •••..• 196-202 

INTERSTATE COMMERCE, 

regulation of 66-86 

INTIMIDATION, 

effect on elections 286-288 

INTOXICATING DRINKS, 

regulation of sale of 77,80,257,258 



INDEX. 409 

INVASIONS, 

protection of States from 217 

INVENTIONS, 

exclusive rights in • . • • 95 

INVOLUNTARY SERVITUDE, 

prohibited 237-240 

IRREGULARITIES, 

in elections, effect of 283-285 

IRREPEALABLE LAWS, 

not to be passed •••••••«• 112 



J. 

JEOPARDY, 

meaning of 325,326 

JOURNAL OE CONGRESS, 

to be kept and published 49, 50 

JUDGES, 

of civil courts 52-54 

of territorial courts 53, 118, 186 

can be required to perform only judicial duty . • . 53,54 

impeachment of 177 

JUDGMENTS, 

of one State to be respected in others 202-206 

JUDICIARY, 

may set aside unconstitutional law 164-174 

power of as respects the executive 175-177 

territorial 53, 118, 155, 1S6 

curing defects in proceedings of ..••....357 
JUDICIARY, FEDERAL, 

grant of power to 52,123 

creation of courts 53,124 

jurisdiction of federal questions by 124-1 28 

of cases affecting ambassadors, &c L28 

of admiralty and maritime causes 129—132 

of suits against the United States 13-2 

of suits by and against States 134-137 

of other suits 136 

exclusive 13S 

original 138, 139 



410 INDEX. 

JUDICIARY, FEDERAL, —continued. 

jurisdiction by transfer of causes to 139-145 

of writ of habeas corpus 145-148 

appellate 124-128, 148 

what laws administered by . 149-152 

conflicts of jurisdiction 152-155 

essential powers of • • • . 155 

political questions in 157 

final authority in construction . • • • • • • • 158, 159 

JUDICIARY, STATE, 

may take cognizance of federal questions 125 

appellate jurisdiction over 125-128, 148 

transfer of causes from 139-145 

jurisdiction of suits affecting personal liberty . . . 145, 146 

law administered by 149-152 

judgments of, to be respected in other States . . . 203-204 
JURY, 

trial by, in the colonies 8 

in civil cases in federal courts • 263-267 

in cases of libel 308 

in criminal cases 321 

privileged discussions in the 303 

JUSTIFICATION, 

in libel cases • . 308 



L. 

LAW OF NATIONS, 

what is 21 

certain principles of «... 196-202 

LAW OF THE LAND, 

right to, by Magna Charta «... 6 

what is the 241-246 

LEGAL TENDER, 

power to make 90-93 

LEGISLATIVE DEPARTMENT, 

creation and organization of 47-51 

proceedings and journals of 49-51 

not to exercise judicial power 310-314 

when enactments of, may be set aside 164-174 

under State constitutions 386 



INDEX. 411 

LEGISLATIVE POWERS, 

assignment of, to one department 445 

not to be delegated Ill 

acts in excess of, are void • • • 164-174 

in the Territories 183-186 

of municipal bodies • • 380, 390 

in State legislatures 386 

LEGISLATORS, 

privilege of, from arrest • 50 

from actions 174, 303 

LEGISLATURES, TERRITORIAL, 

what they are and their powers 184, 185 

LIBEL, 
' law of 299-309 

LIBERTY, 

the birthright of 4, 6, 9 

guaranty of 240-246 

religious 224-227 

meaning of 246, 247 

LIBERTY OF SPEECH AND PRESS, 

law of 299-309 

LIBERTY, RELIGIOUS, 

protection of 224-227 

LICENSE, 

to follow certain employments • • 255-258 

LIMITATION LAWS, 

cutting off contracts by 359 

LITERARY PRODUCTIONS, 

rights in 95,96 

LOCAL SELF-GOVERNMENT, 

the right to 378-3S0 

LORD'S DAY, 

legislation for observance of 227 



M. 
MAGNA CITARTA, 

a charter of liberty , 6 

MAJORITY RULE, 

restraints upou 40, 41 



412 INDEX. 

MALICE, 

in official action 174, 175 

in injurious publications 306, 309 

MARITIME CASES, 

jurisdiction of 129-132,138 

MARRIAGE, 

conflict of laws in respect to 199,252,253 

MARTIAL LAW, 

suspends habeas corpus 316, 317 

courts to administer 53, 156-157 

MEASURES AND WEIGHTS, 

Congress to fix standards of 94 

MESSAGES, 

of the President 119 

MILITARY, 

at the polls 287 

quartering on the people 228, 229 

MILITARY COURTS, 

creation and powers of . . • 53, 156-157 

MILITARY LAW, 

to be prescribed by Congress 100 

MILITIA, 

enrolment and government of ........ • 100, 101 

(See Soldiers.) 

MILL-DAMS, 

taking property for..,. 368 

MISSOURI, 

compromise on admission of .... 192,234,235,268 

MONEY, 

power of Congress in respect to 90-93 

counterfeiting 94 

MONOPOLIES, 

in the use of navigable waters 73, 84 

under State police regulations 80, 262 

in general are illegal 262, 263 

combinations to effect 263 

MUNICIPAL CORPORATIONS, 

place of, in constitutional law . 378 

general rules respecting 378-380 



INDEX. 413 

N. 
NATION, 

definition of 20 

balanced against States 160, 161 

NATIONAL BANKS, 

power to create 107 

taxation of 62 

NATIONS, LAW OF, 

what it is 21 

rules of comity by 196-202 

NATURAL LIBERTY, 

meaning of 246, 247 

NATURALIZATION, 

power over 88 

citizenship by 270, 271 

discriminations in 292 

NAVIGABLE WATERS, 

bridges, dams, and ferries over • 83-85 

right of free navigation 73 

NAVIGATION, 

regulated by Congress 67, 68, 72, 73 

NAVY, 

Congress may provide and maintain 100 

NECESSITY, 

underlies the law of eminent domain . . 363, 364, 398, 369 
NEW STATES, 

how admitted to the Union 187-195, 382, 383 

NEWSPAPERS, 

privileges of 299-309 

NOBILITY, 

titles of, not to be granted 113, 217 

O. 

OBLIGATION OP CONTRACTS, 

States not to impair 328-345 

what is 313 

OPFICE, 

appointment to, not a contract 339 



414 INDEX. 

OFFICERS, 
h appointment and removal of 118, 119 

liability of, to suits 140, 141, 174, 175 

ORDINANCE OE 1787, 

references to . 86, 234, 237 



P. 

PAPERS, 

private, security of 229-231 

PARDONS, 

power to grant 115-117, 178 

PARLIAMENT, 

control of Colonies by 4-6 

sovereign powers of .......••.• 22, 23 

PASSENGERS. 

(See Common Carriers.) 

PATENTS, 

power to grant •. 95, 96 

PEACE AND WAR. 

(See Treaty; War.) 

PENAL LAWS, 

not enforced in foreign State . . 200 

PENALTIES, 

legislative release of ••... 359 

PEOPLE, THE, 

sovereignty reposes in............ 23 

meaning of 295, 383 

PERSONAL LIBERTY. 

(See Habeas Corpus.) 

PETITION, RIGHT OE, 

meaning and extent of • • . . 294-297 

PETITION OE RIGHT, 

provisions of 7 

POLICE POWER, 

belongs to the States 79, 251 

meaning of 250, 338 

monopolies under 80, 262 

regulations of, affecting commerce 76-78, 79 

general regulations under 250-263, 338-341 



INDEX. 415 

POLITICAL LIBERTY, 

meaning of 247 

POLITICAL QUESTIONS, 

courts cannot determine 157, 217 

POLITICAL RIGHTS, 

citizenship 268-275, 290-294 

suffrage and elections 275-294 

right of assembly and petition 294-297 

right to keep and bear arms 297-299 

freedom of speech and of the press 299-309 

POST-OFEICES AND POST-ROADS, 

power to establish 94-95 

POWERS OE GOVERNMENT, 

distribution of.. • • . . 44 

PRESENTS, 

what not to be accepted by officers, &c • . 113 

PRESIDENT, 

election of. • 52 

general powers of 114-122 

veto power of. 51, 119, 120, 178-181 

compensation of 120 

independence of 121 

subject to impeachment 177, 178 

PRESS, LIBERTY OE, 

meaning of the 299-309 

privileged cases 302-309 

truth as a protection 307, 308 

jury the judges of the law 308 

PRICES, 

regulation of 259-261 

PRIVATE PURPOSES, 

taxes not to be laid for • • . • . 59 

property not to be taken for • • 365-36S 

PRIVILEGED PUBLICATIONS, 

what are 302-309 

PRIVILEGES, 

of members of Congress 50,51,303 

of citizens of the States 206-208 

of citizens of the United States 272-27 I 

exclusive 73, SO, 84, 95, 96, 262, 336-338 



416 INDEX. 

PROCESS, 

constructive service of 204, 205 

PROPERTY, 

right to acquire 206 

protection of 246, 260, 261, 345-377 

PUBLIC CORPORATIONS, 

their place in the government 378-380 

not subject to taxation 62 

PUBLIC DEBT, 

constitutional provisions respecting 65, 66 

PUBLIC DOMAIN, 

control of 185-186 

taxation of, by States • • • 62, 63 

PUBLIC GRANTS, 

cannot be recalled or impaired 325-345 

strict construction of 336 

PUBLIC PURPOSES, 

what will support taxation 59-61 

taking property for •• 363-377 

PUBLIC SECURITIES, 

counterfeiting ••••••••• 94 

PUNISHMENTS, 

legislative, forbidden 310-312 

for crimes in general 324 

for contempts of authority • • • 327 

Q. 

QUALIFICATIONS, 

of electors 278,279,290-294 

want of, in candidates 285 

QUARANTINE, 

right to establish regulations of 71, 76 

QUARTERING SOLDIERS. 

(See Soldiees.) 

K. 

RACE, 

not to disqualify from voting «... 290-294 

as affecting naturalization 292 



INDEX. 417 

RAILROADS, 

regulation of communication by • • • 67, 75, 76, 77, 78, 80, 

260, 261 

taxes on freight carried by 75 

bridges for 67, 83-86 

on franchises 83 

taxation of #•• 249, 250 

must provide equal accommodations 258 

regulation of fares on » • • 259, 261 

protection of charters of 333-342 

taking lands for 367, -368, 374 

REBELLIONS, 

protection against 217 

RECONSTRUCTION, 

of States 190, 191, 216 

RECORDS, 

of one State to be respected in the others • . . 203-206 

REGISTRATION, 

of voters 280 

RELIGIOUS LIBERTY, 

protection of 224-227 

REMEDIES, 

for wrongs, State control of . 360-362 

REMOVAL OF CAUSES, 

to federal courts 139-145 

REPEAL OF CHARTERS, 

when lawful 320, 378 

REPRESENTATIVES, 

instruction of....... 42-43 

apportionment and election of • • • 47-49 

qualification of 47, 49 

privileges of 50, 303 

REPRIEVES, 

power to grant 115, 116 

REPUBLICAN GOVERNMENT, 

guaranty of, to the States 213-217 

RESERVED RIGHTS, 

what are 35-37 

RESOLUTIONS OF '9S and '99, 

what they were 109,110 

27 



418 INDEX. 

RETROACTIVE LAWS, 

in criminal matters forbidden 812-314 

in civil matters ••••••• 354-360 

REVENUE, FEDERAL, 

provisions for raising .... 51, 55- 65 

REVOLUTION, 

right of 25, 26 

American ••••• ••••• 3-11 

RIGHTS, 

English bill of 7,17 

reserved by the Constitution ..*•••••• 34—37 

ROADS, f 

providing for 364, 373-376, 380 



a 

SCHOOLS, 

rights in •••••••••• 255 

SEARCH-WARRANTS, 

issue and execution of.. ••• 229-232 

SEARCHES AND SEIZURES, 

unreasonable, forbidden 229-233 

in the Colonies ••••••••• 8 

SECEDED STATES, 

not out of the Union • . . . . 27-2^ 

how restored to representation • 190, 191, 21 £ 

SECRECY, 

right to, in elections 280,281 

SEDITION LAWS, 

provisions of 108-111 

SELE-EXECUTING PROVISIONS, 

of constitutions, what are 238-240, 274 

SELF-GOVERNMENT, LOCAL, 

rules respecting 378-380 

SENATE, FEDERAL, 

constitutional provisions respecting ...... 47-51 

SEPARATION, 

of powers of government .......... 44, 45 

SERVITUDE. 

(See Slavery.) 



INDEX. 419 

SLANDER, 

rules of liability for 299-309 

SLAVE-TRADE, 

prohibition of ••••• 113 

SLAVERY, 

abolished . . .233-240 

SOLDIERS, 

quartering of, on the people ••• 228 

(See Army; Military; Militia.) 
SOVEREIGN POWERS, 

what are • 20, 21 

in the Colonies before the Revolution ••••••• 3 

in the States 16, 17 

apportionment of, in the United States • • • • • • 21, 22 

SOVEREIGN STATE, 

what is •••••••• 20 

SPECIAL PRIVILEGES, 

strict construction of ••.337 

appropriation of, to public uses ••••••• 341, 369 

SPEECH, EREEDOM OE, 

meaning and extent of 299-309 

SPEEDY TRIAL, 

right to 320 

STAMP ACT, 

repeal of .••••••••••••••• 5 

STANDING ARMIES, 

objectionable •••••••••••••• 8, 299 

STATE, 

meaning of 20 

STATE CONSTITUTIONS, 

how formed and accepted ...... 187-195,381-383 

must not conflict with federal powers . . . • • . 32, 3 S3 
(Sec Constitutions op the States.) 
STATE LAW, 

when federal courts administer 149-152 

STATE RIGHTS, 

what are •••.. 33-37, 3S4 

STATES OF THE UNION, 

how formed and admitted 187-195, 3S1-3S4 

may not withdraw 27-28 



420 iotex. 

STATES OF THE UNION — continued. 

are indestructible 29 

subordination of, as to federal powers 32 

powers of, when concurrent with federal . . .36, 37, 70, 83 

are exempt from federal taxation • 62 

may not tax national agencies 61-63 

power of, over legal tender . . 91-92 

may not emit bills of credit 93 

suits by and against, in federal courts • . . e . 132-134 

balanced against the Union 161-163 

division of 191 

guaranty of republican government to 213-217 

protection of, against rebellion and invasion 217 

conflicting claims to government of 216 

citizenship in 272 

privileges of citizens of 206-208 

not to pass bills of attainder • 310 

nor ex post facto laws • 312-314 

nor enter into treaty, &c. 101 

nor impair contracts 328-345 

police powers of 76, 79, 250-263, 338-342 

power of, in matters of war , 101 

may pass retroactive laws 354-358 

may take property for public uses 363-377 

rules of comity between 196-212 

right of people to establish constitution of 382 

constitutions, how formed 381-384 

of, contents 385 

length of 386 

provisions of 385-392 

how construed 386-390 

STATUTES, 

enactment of 390-392 

STATUTORY PRIVILEGES, 

strict construction of 336 

may be taken away 332, 333 

STAY LAWS, 

when invalid 343, 344 

SUFFRAGE, 

sometimes given to aliens 89 

general rules respecting 263, 275-280 



IKDEX. 421 

SUMPTUARY LAWS, 

illegal 263 

SUNDAY, 

laws for observance of •••... 227 

SUPREME COURT, FEDERAL, 

creation of • • . . • 52 

jurisdiction 124-129, 145 

SUPREME LAWS, 

what are ( 31-33 

SURRENDER OE OFFENDERS, 

as between the States 208-212 



T. 

TAKING OF PROPERTY. 

(See Eminent Domain.) 

TAXATION, 

in the Colonies 5 

by Congress 55-59, 63-64 

not for private purposes 59-61 

of government agencies 61-63 

discriminations in 206, 208, 250, 273 

of commerce by the States ... 68, 73, 74, 75, 80, 82, 83 

in violation of contracts 335, 336 

curing irregular •••• 357, 358 

TELEGRAPHIC CORRESPONDENCE, 

regulation of, by Congress 67 

TERRITORIES, 

constitution not made for ..••• 37 

dependence of 37, oS 

courts of 53,54,118,155,156,186 

government of 1S2-1S6 

THIRTEENTH AMENDMENT, 

to Federal Constitution, discussed 237-240 

TITLES OF NOBILITY, 

prohibited 113,217 

TONNAGE DUTIES, 

States not to levy 87, 96 

TRADE-MARKS, 

exclusive rights in • • . 96 



422 index. 

TREASON, 

definition and punishment of 105, 314, 315 

TREATIES, 

supreme authority of 31-32, 117, 118, 175 

power to make 117, 118, 175 

TRIAL, 

general right to • 243-245 

by jury in civil cases • • • • . 263-267 

in criminal cases •••• 8, 319-326 

TRUSTS, 

governmental . . • 23, 332 

commercial •••••••• 69 

interests may be converted ••••• 353 

TWICE IN JEOPARDY, 

accused parties not to be put in • . 325, 326 

U. 

UNCONSTITUTIONAL LAWS, 

what are • 24 

how and when set aside 164-174 

UNITED STATES, 

how formed 9, 25-27 

union of, indissoluble 28 

suits by and against •••• 132 

(See Congress.) 

UNREASONABLE, 
bail. (See Bail.) 
searches, &c. (See Searches and Seizures.) 

V. 

VACANCIES, 

in Congress, how filled .••••••••• 47-49 

in the presidency • . • • 52 

in federal offices ..*... 119 

VALIDATING CONTRACTS. 

(See Curative Laws.) 
VESTED RIGHTS, 

may not be taken away • . • . 351, 352 



INDEX. 423 

VETO TOWER, 

exercise of 51, 119, 178-181 

VICE-PRESIDENT, 

constitutional provisions respecting 48, 52 

VOID STATUTES. 

(See Unconstitutional Laws.) 
VOTERS. 

(See Elections.) 

W. 

WAR, 

Congress may declare and conduct 98-102 

WARRANTS, 

for searches 229-231 

arrests without 232 

WATER-COURSES, 

general regulation of 69, 72, 73, 79 

exclusive privileges in 73-84 

WEIGHTS AND MEASURES, 

Congress to fix standards of 94 

WITNESSES, 

rights of accused to be confronted by 323 

WORKS OF ART, 

exclusive rights in 96 

WRITS OF ASSISTANCE, 

illegality of 232 



f-11 



